2208780 (Migration)

[2023] AATA 4159

2208780 (Migration) [2023] AATA 4159 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr KEVIN PHAM

CASE NUMBER:  2208780

MEMBER:Catherine Carney-Orsborn

DATE:28 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 28 November 2023 at 5:55pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy period of unlawful residence – medical evidence – application for permanent visas – family members in Australia – medical treatment substantially completed – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Department) on 27 May 2022 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 May 2022. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

4. The applicant appeared before the Tribunal on 24 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Shona and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the visa applicant is seeking to remain in Australia temporarily for his medical treatment.

   Are the medical treatment requirements met?

8. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl 602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:

   ·the arrangements for treatment have been concluded

   ·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia

   ·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community

   ·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and

   ·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.

9. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

10. The Tribunal has before it the Department and the Tribunal files.

11. The Department file contains copy of the applicant’s application for a Medical Treatment visa, copy of the applicant’s foreign national ID card, form 1507 Evidence of Intended Medical Treatment dated 3 May 2022, Australian Police certificate on the applicant dated 23 February 2022, superannuation statement to the applicant for 2020-21 year, copy of the applicant’s passport biodata page, three colour photographs depicting burns to hands, a [Medical Centre 1] letter dated 17 March 2015, two [Hospital 1] letters dated 16 June 2015 and 13 September 2017, two [Medical Centre 1] letters dated 7 September 2020 and 25 March 2022, copy of a Hospital discharge summary dated 23 July 2021, copy of WA photo ID card for the applicant, the applicant’s birth certificate from Zimbabwe, Department letter to the applicant regarding a Commonwealth debt together with an instalment plan and two receipts for instalment payments from September 2020, copy of a Department’s natural justice letter to the applicant dated 18 May 2020, grant of a Bridging visa to the applicant dated 18 May 2022, and copy of the delegate’s decision record.

12. The Tribunal file contains a copy of the application for review of refusal, a copy of the delegate’s decision record and a submission dated 19 October 2023.

13. In this submission, the representative reiterated the applicant’s history of application and medical circumstances. The applicant claimed to suffer from colon cancer, which he had been undertaking chemotherapy to treat, since late September 2023. He claimed that this consisted of 8 treatments cycles, which repeated every 21 days until April 2024. The representative cited Schedule 2 of the Migration Act to argue that the applicant fulfils the Medical Treatment visa.

14. The applicant applied for a Medical Treatment visa on 17 May 2022. He stated in his application that he intended to stay in Australia for the purpose of seeking treatment for [specified medical conditions] between 17 May and 30 November 2022.

15. The evidence submitted by the applicant to the Department regarding the intended medical treatment by way of a 1507 form was to control the applicant’s hypertension and generalised seizures with medication.

16. The applicant provided the Department together with his application a copy of a letter from the [Medical Centre 1] dated 25 March 2022. The letter stated that it was in support of the applicant’s visa application and that he suffered from epilepsy, hypertension and major depression. The letter listed the different medication and dosage the applicant took to control his conditions. The letter indicated that the applicant needed to continue taking the prescribed list of medication until conditions resolved.

17. The Department wrote to the applicant in a natural justice letter dated 18 May 2020. The letter explained the concerns the delegate had in regard to the applicant’s movement records in Australia. That the applicant had last arrived in Australia [in] August 2010 and had not left since. That since that time the applicant had lodged a 866 subclass visa with the Department on 17 January 2014 which was unsuccessful. The applicant sought review of the refusal with the Tribunal, and that the refusal was affirmed by the Tribunal and by the Federal Court. That the applicant stayed an unlawful non-citizen in Australia since 18 January 2014. The letter also stated that the applicant had attempted to apply for a further 866 subclass visa on 17 June 2021.

18. The applicant did not respond to the Department’s natural justice letter.

19. The applicant applied for review of the refusal to grant him a Medical Treatment visa with the Tribunal on 16 June 2022.

20. The medical evidence before the Department and the Tribunal is that the applicant has been suffering from epilepsy, hypertension and major depression since 2015. That the head injuries, resulting in the epilepsy episodes, were caused when the applicant was in his home country, at a political protest in 2008.

    The applicant in his application for a Medical Treatment visa submitted that he intended to use his accrued superannuation funds to pay for his medical expenses, and that a friend would fund his accommodation.  He provided letters from his two daughters in Australia which indicated they would support him financially.

    Is the applicant unfit to depart Australia?

21. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant:

    ·is in Australia

    ·has turned 50

    ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

    ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

22. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

23. Evidence submitted to the Department indicates that the applicant suffers from epilepsy, hypertension and major depression. There is evidence he was prescribed with medication.  His condition has been treated with the help of the medications.

24. On the 20 October 2023 the applicant submitted the following evidence.

    ·Investigation Records - Dated 21/06/2023

    ·2. Tax Invoice [from a pharmacy] - Dated 24/07/2023

    ·3. Support Letter from [Mr A]

    ·4. Superannuation Statement for [the applicant]

    ·5. Seizure Management Plan covering the period from 21/06/22 to 21/06/2023

    ·6. Appointment Records for [Hospital 2] on 4/7/23 & 7/7/23

    ·7. Receipt of Payment from [Country 1]

    ·8. Post Operation Reviews Appointment - Dated 22/08/2023

    ·9. Patient Medication List T3B - 8.1

    ·10. Patient Information regarding Bowel Cancer

    ·11. Patient History Report between 01/01/2022 and 28/02/2023

    ·12. Pathology Requests - Dated 13/09/2023 & 18/09/2023

    ·13. Pathology Request for Feb 2024

    ·14. Neurology Appointment - Dated 5/09/2023

    ·15. Medical Oncology Appointment - Dated 23/08/2023

    ·16. Medical Certificates - Dated 30/08/2023 & 21/04/2023

    ·17. Letters from [Medical Centre 1] between 6/08/2015 and 10/07/2023

    ·18. Letter from Swancare - Dated 12/09/2023

    ·19. Letters of Support from 2 Daughters

    ·20. Letter from [Hospital 2] - Dated 7/07/2023

    ·21. Letter from [Hospital 1] - Dated 6/01/2016

    ·22. Letter from [Dr B] - Dated 16/06/2023at the applicant intends to complete a medical treatment by a certain date.

    ·from [Dr C] (2) - Dated 21/03/2023

    ·24. Letter from [Dr C] - Dated 31/03/2023

    ·25. Letter from [Dr C] - Dated 21/03/2023

    ·26. Letter from [Dr C] - Dated 07/09/2020

    ·27. Letter from [Dr C] - Dated 01/05/2023

    ·28. EMG Report - Dated 05/05/2023

    ·29. Letter from [Dr D] - Dated 13/09/2023

    ·30. Discharge Summary from [Hospital 2] - Dated 23/07/2021

    ·31. Discharge Summary from [Hospital 1] - Dated 15/09/2022

    ·32. Discharge Summary from [Hospital 2] - Dated 25/08/2023

    ·33. Current Payslip for [the applicant]

    ·34. [Health Service 1] Procedure Report - Dated 21/07/2023

    ·35. [Health Service 1] Procedure Report - Dated 22/06/2023

    ·36. Appointment Records for [Hospital 2] - Dated 1/08/2023

    ·37. Immigration Refusal Notification with Decision Record

25. The Tribunal has considered the above evidence.

26. Many of the reports are older and include receipts from chemists and pathology results.  The Tribunal accepts that the applicant has suffered from epilepsy and has received treatment.  He is on medication for his condition as well as for hypertension and treatment for his hand.  He has been prescribed medication which is treating the medical concerns he outlined in his application for a medical treatment visa. 

27. The more recent reports supplied to the Tribunal indicate that since the lodgement of his medical treatment visa the applicant has developed a tumour which was removed from his colon. 

28. The specialist report dated 13 September 2023 indicated that the cancer was excised successfully and had not metastasised.  The report stated that he is systemically well.

29. The Doctor stated “I have discussed the risks and benefits of adjuvant chemotherapy.  I have told him in patients with stage IIA disease, 80% of patients are cured from surgery alone and chemotherapy adds about 4-5% absolute overall survival benefit.  He is quite keen on proceeding with chemotherapy”.

30. At hearing the Tribunal discussed with the applicant that he had received medical treatment in Australia which it appears had been successful.  He has continued to work and is on medication to control his conditions.  His evidence is that he has been on light duties at work.

31. The applicant stated that he is currently undergoing a cycle of chemotherapy that his doctor recommended, and he is following.   He states he wants to finish his chemotherapy and monitor his health.

32. The Tribunal put to the applicant that it appears from the medical reports that his last appointment is in December.  He responded that it may be longer.  He had supplied a letter and submissions from his representative stating that the cycle was for eight treatments which will end in April 2024.  He stated that his medical records are in Australia, and he wants to continue to be monitored here.

33. The Tribunal put to the applicant that it appears he has financial resources being a significant amount of superannuation and the financial support of his daughters in Australia and that he could source treatment in Zimbabwe with the money he has or in South Africa.  He responded that his medical records are in Australia.

34. The Tribunal then discussed with the applicant that he has been in Australia since 2010 and working so that he has accrued a substantial amount of superannuation.

35. His migration records indicate he has made unsuccessful applications for protection visas, and it could look like he intends to stay in Australia.  He responded that he intends to return to Zimbabwe. 

36. The applicant has two daughters in Australia.  In Zimbabwe he has his mother and [specified family members].  Given the applicant’s circumstances overall the Tribunal is not satisfied that he intends to stay temporarily in Australia for medical treatment.

37. The Tribunal accepts he is undergoing medical treatment however that treatment has been successful, and any monitoring of his conditions could be undertaken in his home country as he has financial resources including the intention of his two daughters in Australia to support him financially. 

38. The applicant at hearing stated that he wants to be monitored in Australia as his medical records are in Australia.  The Tribunal finds that medical records can be provided to him and any doctors who may be monitoring his condition overseas. 

39. The purpose of the medical treatment visa is that it is a temporary visa for medical treatment to be provided.  The treatment has been provided.  The applicant’s evidence is that he is currently working, and he has financial resources available to him.  Any treatment that needs to be continued appears to be maintenance treatment and can be continued in his home country.

40. The applicant’s evidence that he wishes to continue to be monitored in Australia would indicate that he does not intend to return to his home country.

41. The applicant is in Australia. He has turned 50. However, he has not met the criteria for a permanent visa. There is no evidence before the Tribunal that he is medically unfit to depart Australia evidenced in writing by a Medical Officer of the Commonwealth.

42. After considering the evidence before it, the Tribunal is not satisfied that the applicant is unfit to depart Australia.

43. Given the above findings, the requirements in cl 602.212(6) are not met.

    Does the applicant have a genuine intention to stay temporarily for the visa purpose?

44. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6) which requires that an applicant:

    ·is in Australia

    ·has turned 50

    ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

    ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

45. As set out above the Tribunal has found that the applicant has not met the requirements of cl.602.212(6).

46. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

47. As such the Tribunal has considered whether the applicant has a genuine intention to stay temporarily in Australia for the visa purpose as set out in cl 602.215.

48. The applicant has been in Australia since 2010.  He has applied for several permanent visas and has at times been unlawful.  On the evidence before the Tribunal in relation to his migration records the Tribunal is not satisfied that he intends to stay temporarily in Australia.

49. The applicant has received medical treatment in Australia and the doctors’ reports indicate it has been successful.  The Tribunal is satisfied that any further maintenance such as medications and monitoring can be undertaken in his home country.

50. For the reasons set out above the Tribunal, while sympathetic to the applicant, is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of the visa.

51. Given the above findings, cl 602.215 is not met.

52. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    DECISION

53. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

    Catherine Carney-Orsborn
    Member

    
    

    ATTACHMENT

    MIGRATION REGULATIONS 1994

    SCHEDULE 2

    602.212 (1)    The requirements in one of subclauses (2) to (8) are met.

    Medical treatment

    (2)All of the following requirements are met:

    (a)    the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;

    (b)    arrangements have been concluded to carry out the treatment;

    (c)     if the treatment is an organ transplant:

    (i)the donor of the relevant organ is accompanying the applicant to Australia; or

    (ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;

    (d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

    (e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

    (f)     either:

    (i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

    (ii)evidence is produced that the relevant government authority has approved the payment of those costs.

    Organ donor

    (3)All of the following requirements are met:

    (a)    the applicant seeks to donate an organ for transplant in Australia;

    (b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;

    (c)     the applicant satisfies public interest criterion 4005;

    (d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

    (e)     either:

    (i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

    (ii)evidence is produced that the relevant government authority has approved the payment of those costs.

    Support person

    (4)All of the following requirements are met:

    (a)    the applicant seeks to give emotional and other support to an applicant in relation to whom:

    (i)the requirements described in subclause (2) or (3) are met; or

    (ii)the requirements described in subclause 675.212(2) or (3) are met; or

    (iii)the requirements described in subclause 685.212(2) or (3) are met;

    (b)    the person to whom the applicant is to provide support holds:

    (i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or

    (ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or

    (iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;

    (c)     the applicant satisfies public interest criterion 4005.

    Western Province of Papua New Guinea

    (5)All of the following requirements are met:

    (a)    the applicant is a citizen of Papua New Guinea;

    (b)    the applicant resides in the Western Province of Papua New Guinea;

    (c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.

    Unfit to depart

    (6) All of the following requirements are met:

    (a)    the applicant is in Australia;

    (b)    the applicant has turned 50;

    (c)     the applicant has applied for a permanent visa while in Australia;

    (d)    the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

    (e)     the applicant has been refused the visa;

    (f)     the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

    Financial hardship

    (7)All of the following requirements are met:

    (a)    one of the following applies:

    (i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;

    (ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;

    (iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;

    (iv)the requirements described in subclause (5) are met in relation to the applicant;

    (v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;

    (b)    the applicant is in Australia;

    (c)     the applicant holds:

    (i)a Subclass 602 visa; or

    (ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or

    (iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;

    (d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;

    (e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;

    (f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;

    (g)     the applicant has compelling personal reasons to work in Australia;

    (h)    the applicant satisfies public interest criterion 4005.

    Compelling personal reasons

    (8)All of the following requirements are met:

    (a)    one of the following applies:

    (i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;

    (ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;

    (iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;

    (iv)the requirements described in subclause (5) are met in relation to the applicant;

    (v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;

    (b)    the applicant is in Australia;

    (c)     the applicant has compelling personal reasons for the grant of the visa;

    (d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).