Abdul Khader Nehal (Migration)

[2022] AATA 4717

Abdul Khader Nehal (Migration) [2022] AATA 4717 (13 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Abdul Khader Nehal

CASE NUMBER:  2112848

HOME AFFAIRS REFERENCE(S):          BCC2021/1645394

MEMBER:Stephen Witts

DATE:13 December 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 13 December 2022 at 11:50am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – applicant’s migration history – period of unlawful residence – unfit to depart Australia – limited medical evidence – decision under review affirmed

LEGISLATION

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

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 3 September 2021 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 24 August 2021. 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 applicant failed to satisfy the criteria set out in the relevant Migration Regulations.

4. On 18 October 2022 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 13 December 2022. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. Prior to the Hearing the Tribunal sent system generated SMS reminder notices to the applicant’s phone number.

5. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. These “preliminaries” are not part of the hearing, and the presiding member does not attend during this process as it is conducted by administrative staff of the Tribunal. In accordance with that procedure the Tribunal notes that the applicant was contacted three times prior to the hearing on his nominated number and did not respond.

6. On that basis the review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with relevant provisions in the Act and the invitation has not been returned to sender. In these circumstances, and pursuant to the relevant section in the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

9. According to the delegate’s decision record, provided to it by the applicant, the applicant lodged an application for a medical treatment visa. According to the department it considered the applicant’s application in terms of the amount of time already spent in Australia and the applicant’s migration history and made a decision that it gave rise to a concern as to whether the applicant was a genuine temporary entrant.

10. According to the delegate the applicant was granted a student visa on 23 January 2019 and arrived in Australia on 16 February 2020. According to the delegate the applicant has maintained residence on shore since that time except for one month.

11. According to the delegate the applicant’s visa expired on 15 March 2021 and the applicant overstayed remaining in Australia as an unlawful noncitizen for over five months until making the application for a medical treatment visa.

12. According to the delegate the applicant requested to remain in Australia until 11 October 2021 and that given the applicant’s previous non-compliance the department refused the application.

13. As noted above the applicant did not present for the hearing.

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

14. 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.

15. Clauses 600.215 and 602.212 are set out immediately below:

    602.215

    1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a) whether the applicant has complied substantially with the conditions to which the last

    substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

    (b) whether the applicant intends to comply with the conditions to which the Subclass 602

    visa would be subject; and

    (c) any other relevant matter.

    (2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

16. Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:

    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.

17. Clause 602.212 (6) (f) provides as follows:

    “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

18. The Tribunal notes that departmental records indicate that a form 1507 evidence of intended medical treatment was provided by the applicant on 6 August 2021 stating that the applicant is undergoing psychological counselling for depression at that time. The Tribunal also notes that no other evidence has been provided since that date. The Tribunal has considered this carefully and finds that this does not demonstrate that the applicant is unfit to depart Australia due to a permanent or deteriorating disease or health condition. The Tribunal finds that, if necessary, the applicant can depart Australia and continue appropriate medical treatment in his home country.

19. The applicant therefore did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

20. Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”

21. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

22. The applicant was born on 17 October 1993. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

23. Hence the applicant does not meet the criteria set out in cl.602.212 (6).

24. Accordingly, the Tribunal turns to cl.602.215.

25. The Tribunal has considered all the above information. There is no evidence before the Tribunal that the applicant has been receiving any medical treatment in Australia for a lengthy period of time.  There is no evidence before the Tribunal that the applicant has current plans to seek medical treatment.  There is no evidence before the Tribunal that the applicant has plans to leave Australia.

26. There is no documentation or additional information before the Tribunal that was not before the delegate. The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state the applicant must remain in Australia for ongoing consultation.

27. There is no evidence before the Tribunal that the applicant has a current consultation and or plans for future consultation. Information provided does not state that the treatment the applicant was seeking as at the time of the applicant’s application for a Medical Treatment visa was unavailable outside of Australia and in the applicant’s home country.

28. The Tribunal has considered the claims and supporting evidence that the applicant has provided with the application.

29. The Tribunal finds that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintain ongoing residence, and that the applicant does not genuinely intend to remain in Australia on a temporary basis.

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

31. 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

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

    Stephen Witts
    Member