2216347 (Migration) - [2023] AATA 3003

2216347 (Migration) [2023] AATA 3003 (14 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
\REPRESENTATIVE:  Ms Edwina King (MARN: 1803481)
CASE NUMBER:  2216347
MEMBER:Stephen Conwell
DATE:14 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:
·cl 602.212 of Schedule 2 to the Regulations; and
·cl 602.215 of Schedule 2 to the Regulations

Statement made on 14 July 2023 at 4:15pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – psychological counselling –evidence of treatment provided, departing flight booked and potential job offer in home country – previous visa cancelled and period as unlawful non-citizen – department aware that applicant had not received notification of cancellation – error of law and lack of procedural fairness – consequences for likely future visa applications – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(g), 360(2)
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(6), 602.515(1)(a)-(c)
CASES
DET22 v MICMA [2022] FedCFamC2G 774
El Mir v MICMSMA (No 2) [2021] FCCA 1093
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 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).
The applicant applied for the visa on 2 August 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).
The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and therefore does not meet cl.602.215.
The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The applicant was represented in relation to the review by his registered migration agent (representative).
Having regard to the decision record, the information provided to the Department and the information, submissions and documents provided to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, or whether that requirement does not apply because the applicant is medically unfit to depart.
The Tribunal has considered whether it is necessary in considering cl.602.215, to first identify the relevant purpose of the applicant’s application for the visa which must be a purpose permitted by cl. 602.212, as suggested by the Federal Circuit Court of Australia in the judgement El Mir v MICMSMA.[1] However, a more recent decision of the Federal Circuit Court in DET22 v Minister for Immigration, Citizenship and Multicultural Affairs[2] held that judgment in El Mir does not establish any general principle that in every case the Tribunal is required to consider all of the potentially relevant subclauses within cl 602.212 before considering whether an applicant meets cl 602.215, though it was acknowledged that there may well be cases where this is appropriate or necessary.
[1] El Mir v MICMSMA (No 2) [2021] FCCA 1093
[2] [2022] FedCFamC2G 774
Are the medical treatment requirements met?
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.
There is no suggestion that any of the other alternative sub-criteria are relevant in this case.
At the time of application, the evidence indicates the applicant sought the visa from 2 August 2022 to 29 September 2022 to seek medical treatment in the form of psychological counselling following [an incident] in August 2021. He provided a Form 1507 in support of the application, indicating the medical treatment he will be seeking.
On 13 June 2023 the Tribunal invited the applicant to provide evidence of medical treatment undertaken to date and further treatment he seeks to obtain; evidence of payment for the treatment undertaken and of the arrangements he has made for the payment of costs related to future treatment; and evidence of source of funds for these costs and his other expenses for his stay in Australia. He was also invited to provide further evidence or information to support that his intention to remain temporarily in Australia for the purpose for which the visa is granted is genuine.
On 4 July 2023 and on 7 July 2023 the applicant provided various documents in response:
·written submission dated 4 July 2023 from the representative;
·a medical assessment 25 June 2023 in respect of the applicant from [named] Clinic, stating that the applicant commenced fortnightly treatment in July 2023 which is expected to last six months;
·documents obtained through Freedom of Information Acts (FOI) regarding the applicant’s police file and migration history;
·an international flight booked for the applicant and his [fiancée] to depart Australia for Ireland [in] January 2024;
·a potential job offer for the applicant in Ireland.
The representative’s written submission, in summary, makes the following points:
·the applicant had a number of minor offences in his youth, which he disclosed in his both his first and second Working Holiday visa applications;
·after conducting ‘background checks’ on the applicant the Department sought the support of other government agencies to cancel the applicant’s visa on character grounds. Citing the minor nature of the past offences, the other government agencies did not the support cancelling the applicant’s visa on character grounds;
·the Department eventually decided to exercise the discretion under s 116(1)(g) of the Act to cancel the applicant’s Bridging visa;
·to further complicate matters, the Department’s cancellation decision was never received by the applicant as he no longer used the address it was sent to. The Department was aware of this fact since the letter was “returned to sender”. Similarly, the ‘courtesy email’ was also not received by the applicant as he no longer had access to the email address to which it was sent.
·in light of these facts, it is submitted that the applicant became unlawful and lost his right to appeal due to an error of law and lack of procedural fairness.
·the applicant has not departed Australia as his irregular visa status means that he would be unable to return onshore for an extended period of time;
·the applicant has not seen his family and friends in Ireland for almost 10 years and he and his current partner are keen to return there once he has finished his medical treatment and corrected his legal status;
·the applicant has been undergoing treatment since Aug 2021 when [an incident occurred]. He intends to complete his medical treatment and regulate his visa status so he can return to Australia at some future time should he wish to do so.
On the evidence referred to above, including the applicant’s statutory declaration of 18 July 2022, the previous representative’s written submission of 21 July 2022 and that of the current representative cited above, as well as all other supporting documents provided, the Tribunal accepts that the applicant has been diagnosed with [specified conditions], stemming from [an incident] in August 2021. It accepts that the applicant has been undergoing counselling and related psychological treatment since then and continues to do so for the rest of this year.
Therefore the Tribunal is satisfied the applicant is seeking medical treatment and there is sufficient evidence before the Tribunal to indicate that the treatment is expected to be completed within six months.
Given the above findings, the Tribunal is satisfied the requirements in cl 602.212(2) are met.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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.
As the applicant is under 50 years old, cl.602.212(6) does not apply and accordingly, the requirement in cl 602.215 applies.
In the present case, the applicant seeks the visa for the purposes of medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.
The Tribunal has considered the matters referred to in cl.602.215. Whilst the bald facts of the applicant’s visa history indicate that he has had a visa cancelled and has remained unlawfully onshore for over six years, the Tribunal accepts the submissions made on his behalf which provide context and substance to his extenuating personal circumstances which perhaps may have been given greater weight by the Department in its assessment of his visa application. Furthermore the applicant is likely to wish to return to Australia at some future time, which is a further incentive for him to wish to comply with the terms of this Medical Treatment visa, should it be granted to him. The Tribunal is satisfied on the basis of these submissions, that the applicant intends in future, to comply with all conditions to which the visa is subject.
For the above reasons the Tribunal is satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl 602.215(1)(a) to (c).
Given the above findings, cl 602.215 is met.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.
DECISION
The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:
· cl 602.212 of Schedule 2 to the Regulations; and
· cl 602.215 of Schedule 2 to the Regulations.
Stephen Conwell
Member