2313847 (Migration)

[2023] AATA 4510

2313847 (Migration) [2023] AATA 4510 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Qijing Briony Chen

CASE NUMBER:  2313847/2311846

MEMBER:Tania Flood

DATE:18 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Medical Treatment (Visitor) (Class UB) visas.

Statement made on 18 December 2023 at 9:58am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – support person for family member – application for a permanent visa – lengthy stay in Australia – period of unlawful residence – statelessness – lack of personal ties in Nepal – ongoing medical treatment – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007, s 21
Migration Act 1958, ss 57, 65, 360
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 on 24 August 2023 to refuse to grant the applicants Medical Treatment (Visitor) (Class UB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant applied for a Medical Treatment (Visitor) (class UB) (subclass 602) visa on 17 December 2021. His mother, the second named applicant applied for a Medical Treatment (Support Person) visa on 19 January 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. On 6 May 2022 the applicants were refused the visas. The applicants applied for review of the decisions to the Tribunal and on 13 June 2023 the Tribunal remitted the applications for reconsideration with the direction that the first named applicant met the criteria at cl.602.212(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and the second named applicant met the criteria at cl 602.212 (4) of Schedule 2 to the Regulations.

4. On 24 August 2023 a delegate of the Minister for Home Affairs refused to grant the first named applicant a Medical Treatment (Visitor) (Class UB) visa because the delegate was not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and therefore did not meet cl.602.215 of the Regulations.  The second named applicant was refused the visa as the delegate was not satisfied she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  The delegate found that as the second named applicant did not meet cl.602.215, the criteria for the grant of a Medical Treatment (Support Person) visa is not met. 

5. The second applicant appeared before the Tribunal on 12 December 2023 to give evidence and present arguments.

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

7. For the following reasons, the Tribunal has decided that the decisions under review should be affirmed.

   BACKGROUND

8. The Departments records show that the first named applicant was born in Australia and has never departed the country.  On 6 January 2016 he was granted a [Student] ] visa.  He subsequently applied for a Protection visa on 5 May 2016 as a dependent which was refused on 31 July 2020. 

9. For the second named applicant the Departments records show that she first entered Australia [in] September 2008.  She was granted a series of Student visas before having the last application for a [Student] visa refused on 10 February 2014.  She successfully sought a review of that decision by the Tribunal and was subsequently granted a fifth [Student] visa on 17 November 2015.  On 5 May 2016 she applied for a Protection visa which was refused on 31 July 2020.  On 18 September 2020 she applied for review of the decision but a differently constituted Tribunal found it had no jurisdiction to conduct the review.  The applicant unsuccessfully sought judicial review and thereafter applied for a Medical Treatment (subclass 602) visa.

10. In the application for a Medical Treatment visa it is indicated that the first named applicant has the medical condition, congenital talipes equinovares (clubfoot).  It is indicated that he wanted to remain in Australia from 3 December 2021 to 30 June 2022 to undergo medical treatment and will be supported by his mother, the second named applicant.  It is also indicated that he overstayed a Bridging Visa A upon refusal of a Protection visa application. 

11. In the application made by the second named applicant for a Medical Treatment (Support Person) visa it is stated that she wished to remain in Australia from 3 December 2021 to 30 June 2022 as a person who will be accompanying a person who will undergo medical treatment. It is also indicated that she overstayed a Bridging Visa A upon refusal of a Protection visa application. 

12. Evidence attached to the Department’s file includes a submission dated 1 April 2022 by Tang Law Pty Ltd which indicates the first named applicant has applied for citizenship by conferral.  The submission includes a letter from [Representative A] from [Firm 1] (Law Firm in Kathmandu) dated 12 July 2021.  Also attached to the Department’s file is a submission made by Tang Law Pty Ltd in the first Tribunal proceedings dated 28 April 2023 which clarifies that the first named applicant has applied for Australian citizenship on the basis of being stateless under s21(8) of the Australian Citizenship Act 2007 (Cth)(Citizenship Act).

13. On 15 June 2023 the Department wrote to the applicants inviting them to comment on adverse information including their migration history and ties to Australia and Nepal and to provide documentary evidence to substantiate claims that they genuinely intend to leave Australia at the end of the medical treatment plan.

14. On 22 June 2023 Tan Law Pty Ltd provided a response on the applicants’ behalf to the s57 natural justice letter sent to the applicants on 15 June 2023.  The following submissions were made:

15. The applicants continue to fear harm if returned to Nepal and are greatly aggrieved by the fact they did not have the opportunity to have their Protection visa application considered by the AAT.  The second named applicant still fears returning to Nepal as a single mother and it is believed that the first named applicant is stateless and entitled to Australian citizenship.  The applicants would again apply for protection if it were legally possible for them to do so. 

16. It is further submitted that the first named applicant genuinely seeks further medical consultation and treatment in Australia.  However, they also seek a substantive visa to regularise their status and further explore options to seek asylum in Australia.

17. The applicants requested that the Department delay making a decision on the visa applications until a decision has been made on the first named applicant’s Australian citizenship application. 

18. It is submitted that the first named applicant is eligible for the grant of Australian citizenship and if granted he would face significant hardship if his mother did not have the right to remain in Australia.  He is [an age]-year-old boy and cannot remain in Australia without his mother.  He has had no contact with his father since shortly after his birth.

19. Attached to the abovementioned submission is a copy of a submission provided to the Department in support of the application for citizenship for the first named applicant; a request for more information about this application dated 24 May 2022; a letter from [Doctor A] of [Hospital 1] dated 22 May 2023 and a letter of legal opinion by [Representative A] of [Firm 1], a Nepalese Law Firm dated 12 July 2021. 

20. The applicants also provided a copy of a letter from [Doctor B], Orthopaedic Registrar, dated 21 August 2023 which indicates the first named applicant has been under the care of [Mr A] at [Hospital 1] for bilateral congenital talipes equinovarus.  The letter notes he has previously had surgical and casting management but has persistence of some of his deformity that may require surgical intervention in the future.  At this stage it is noted that his management involves physiotherapy and orthotics.  It is noted that he will be reviewed in 6 months to determine if he requires surgical intervention. 

    Tribunal hearing

21. The second named applicant provided oral testimony on behalf of herself and her son at a hearing held on 12 December 2023. 

22. During the hearing the second named applicant stated that she has not been advised of any developments in the case of the application for Australian citizenship by her son.  She confirmed the details of her migration history which is outlined above and stated that she applied for a Protection visa on the basis of returning to Nepal as a single mother.  She also reiterated that her son is not a citizen of Nepal and cannot return there.  She indicated she and her son still fear returning to Nepal for those reasons.

23. The second named applicant stated at hearing that her mother and brother reside in Nepal but they are not in contact with her.  The reason given for the lack of contact is that her husband left her.  She has not maintained any close friendships in Nepal and nor does she own any property or other assets in Nepal.

24. The second named applicant confirmed the medical advice outlined in the abovementioned letter from [Doctor B] on 21 August 2023.  She stated that they will know more when they next see the doctor in March 2024. 

25. The second named applicant requested the Tribunal refer the matter for Ministerial Intervention in the event the review is unsuccessful.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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 applicants genuinely intend to stay in Australia temporarily for the purpose for which the visa is granted.

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

27. Clause 602.215 requires that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to whether the applicants have complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicants’ 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.

28. According to the available information the applicants are aged [respective ages].  Therefore they do not satisfy the criterion in cl.602.212(6).  Given this, the requirement in cl.602.215 does apply.

    Do the applicants have a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted?

29. Having considered the available evidence the Tribunal accepts the first named applicant has the medical condition outlined in the medical evidence provided and that his condition is under ongoing review by [Hospital 1]. 

30. However, the Tribunal is not satisfied that the second named applicant genuinely intends to depart Australia when or if the first named applicant’s medical treatment concludes.  When asked during the hearing what she will do in the event of a positive prognosis in respect of her sons condition she said she will take him back to Nepal.  She replied that she would have no legal basis to remain in Australia and would have no choice but to return.  The Tribunal has considered her responses but is not persuaded that her oral testimony was genuine.  As discussed with her during the hearing the Tribunal does not consider her oral testimony is supported by her previous submissions to the Department or her oral testimony during the hearing about her son’s inability to acquire Nepalese citizenship and her claimed ongoing fears for both her and her son’s safety in Nepal.

31. As can be seen from the above the second named applicant has resided in Australia continuously for fifteen years and has never once returned to her country.  Her son was born in Australia.  She has attempted to secure a permanent visa in Australia and unsuccessfully sought merit and judicial review of this decision in a bid to remain here.  She overstayed a Bridging visa and remained unlawfully in Australia for a time.  Additionally, she has facilitated the first named applicant’s application for Australian citizenship and they remain hopeful the application will succeed.  The second named applicant has advanced arguments in respect of his inability to remain in Australia without his mother.  In the Tribunal’s view the second named applicant has demonstrated she is highly motivated to ensure she and her son remain in Australia permanently.   

32. Additionally, as discussed with the second named applicant during the hearing she appears to have no incentive to return to Nepal now.  Her evidence is that she maintains no contact with her family and has maintained no close friends in Nepal whom she could call upon for support.  Further, she has been absent from the country for fifteen years, has no employment or immediate accommodation to return to and no assets which could be liquidated to assist her in re-establishing herself in the country.   The Tribunal acknowledges her testimony that she would need to survive in any event but remains of the view that her lack of personal or other ties in Nepal is a strong disincentive for her returning there.

33. Based on the available evidence the Tribunal is not satisfied that the second named applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted.  The first named applicant is [age] years old and as discussed with the second named applicant during the hearing the Tribunal considers he is too young to have formed an opinion about his future intentions.  The Tribunal finds he will be subject to the intentions of his mother. 

34. Clause 602.215 in Schedule 2 of the Regulations is a criterion that must be satisfied. For the above reasons, the Tribunal finds that cl 602.215 is not met by either applicant.

35. Based on the findings above, the applicants do not meet the requirements for the grant of the visas. The decisions under review must be affirmed.

    REQUEST FOR REFERRAL FOR MINISTERIAL INTERVENTION

36. The Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so.

37. The Minister’s Guidelines state that the public interest may be serviced where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances, which are said to include:

    -    Compassionate circumstances regarding the age and/or health and/or psychological state of the person, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

38. Irrespective of the above findings, the Tribunal is satisfied that the first named applicant requires ongoing medical treatment for his clubfoot condition.  While it is difficult to assess the length of time required to conclude his treatment the Tribunal considers, given his young age and critical stage of development, that there is a compelling case to be made for allowing him to have his condition and treatment reviewed for a further period of time. If his condition goes unresolved the Tribunal considers it likely that he will suffer ongoing physical pain and suffering and continuing hardship.

39. For these reasons, the Tribunal considers that the circumstances warrant that it recommends to the Department that it conducts an assessment of the applicants’ circumstances, including a consideration of the matters raised above and accordingly, provides an appropriate submission to the Minister for consideration. 

    DECISION

40. The Tribunal affirms the decisions not to grant the applicants a Medical Treatment (Visitor) (Class UB) visa.

    Tania Flood
    Member