Ahmad (Migration)
[2022] AATA 4642
•29 November 2022
Ahmad (Migration) [2022] AATA 4642 (29 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Rana Mukhtar Ahmad
CASE NUMBER: 2207365
HOME AFFAIRS REFERENCE(S): BCC2022/1337959
MEMBER:Naomi Schmitz
DATE:29 November 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 29 November 2022 at 12:32pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – outstanding debt to the Commonwealth – land and business ownership in home country – family ties in Pakistan – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.217; Schedule 4, Public Interest Criteria 4004CASES
Hasran v MIAC [2010] FCAFC 40
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 4 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).
The applicant applied for the visa on 20 April 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 that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.
On 20 May 2022, the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.
On 20 October 2022, the Tribunal invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:
1. Immigration records demonstrate that your last arrival in Australia was on 2 November 2013 on a Visitor visa (subclass 600). Immigration records disclose that despite several brief departures you have remained in Australia since that time. Why have you not departed Australia?
2. In your medical treatment visa application lodged on 20 April 2022, you claimed that you would like to remain in Australia from 20 April 2022 until 20 April 2023 to seek medical treatment for coronary artery disease with a history of CABG [coronary artery bypass graft] with ongoing symptoms needing active treatment at an estimated cost of $15,000.00. What arrangements are you making to depart Australia by 20 April 2023?
3. The Tribunal does not have information concerning your medical treatment. Please provide information regarding:
a. When you were first diagnosed with those condition(s);
b. What your current medical treatment for those condition(s) involves;
c. The prognosis of your medical condition(s); and
d. When does the medical treatment you have undertaken end or when is it due to end?
4. Noting you have been in Australia since 2 November 2013 please provide any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
The invitation requesting information advised that if the applicant did not provide information pursuant to s.359(2) in writing by 3 November 2022, the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments: s.360(3) of the Act.
On 25 October 2022, the Tribunal wrote to the applicant to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:00am (NSW/VIC time) on 9 November 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.
On 2 November 2022, the applicant requested an extension of time to provide information and requested that the hearing be postponed. The basis for both applications were as follows:[1]
His [the applicant’s] treating doctor, Dr. Anwar A Shahzad in Blacktown is currently overseas and will not return to work until December 2022.
The applicant's medical review with the doctor is schedule for January 2023. he is therefore unable to obtain an up to date medical report and treatment plan from his treating doctor until his doctor returns from overseas.
The applicant requests the tribunal to give extension of time until the end of December for him to provide up date medical report once he is able to book an appointment to see his treating doctor.
The applicant also request the scheduled hearing to be postponed for the same reason.
[1] Letter from the applicant’s representative dated 2 November 2022
On 3 November 2022, the Tribunal advised that the Tribunal Member had considered the correspondence carefully, however the application for an extension to file information and the application to postpone the hearing was refused. The applicant applied for the Medical Treatment visa on 20 April 2022, approximately seven months ago. The Tribunal Member was therefore of the view that the applicant had had ample time and opportunity to collate relevant information in support of his application for review. The Tribunal Member also found it perplexing that in the intervening period the applicant had not consulted with his treating doctor. This is particularly so, given the applicant’s claims that he requires active treatment and has ongoing symptoms relating to his coronary artery disease. The Tribunal would therefore expect that there would be available information of this active treatment without delay. The Tribunal Member further noted that no corroborative evidence (such as a confirmation of appointment) was filed in support that the applicant had a consultation scheduled in January 2023. The claim was also inconstant with the email which stated, ‘once he is able to book an appointment to see his treating doctor’, which indicated to the Tribunal that the applicant was yet to make an appointment.
Subsequently on 3 November 2022, the representative advised that she had been unable to obtain any instructions from the applicant and would cease acting if she did not receive instructions by 4 November 2022.[2]
[2] Email from representative on 3 November 2022 at 5:24pm
On 8 November 2022, the Tribunal advised that it did not regard the letter dated 2 November 2022 as a response to the Tribunal’s invitation to provide information pursuant to s.359(2) of the Act. The letter advised that the Tribunal Member had carefully considered the letter requesting an adjournment of the hearing and an extension of time for filing information. Although the letter contained some information addressing the applicant’s intention to stay temporarily in Australia and reasons for failing to depart to date, the letter did not substantially address the issues raised by the Tribunal in its letter of 20 October 2022, in particular points two and three. This is further supported by the applicant seeking an extension of time to gather more medical information. Accordingly, the Tribunal did not regard the 2 November 2022 letter as a response to the Tribunal’s s.359(2) invitation. The applicant was advised that as the Tribunal did not receive a response, the applicant would lose his entitlement to a hearing.
The Tribunal advised that it was aware the applicant’s cardiologist was overseas and that the applicant planned to book an appointment in January 2023. However, the Tribunal did not regard it as reasonable to postpone its decision to allow additional time for the applicant to provide further medical information. The Tribunal Member was of the view that the applicant had had ample time to collate relevant information in support of his application for review. This is particularly in light of the applicant’s claims that he has ongoing symptoms, requiring active treatment for his coronary artery disease. The Tribunal would therefore expect that there would be available information since the time of application or that the applicant had received some form of medical intervention or undertaken preparatory steps. The Tribunal also did not regard it as reasonable to defer it decision until January 2023, as there was no evidence to support that the applicant had in fact booked a consultation in January 2023. The Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review pursuant to s.2A of the Administrative Appeals Tribunal Act 1975 (Cth).
As the applicant did not comment on or respond to information and failed to provide information pursuant to s.359A and s.359(2) of the Act, the applicant no longer had a right to appear before the Tribunal pursuant to s.360(3). The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear.[3]
[3] Hasran v MIAC [2010] FCAFC 40
On 8 November 2022, the hearing scheduled for 9 November 2022 was cancelled and the applicant was notified of the cancellation of the hearing by email. The letter advised that the Tribunal Member would proceed to make a decision on the information before the Tribunal, including information received up until the time of decision regarding the applicant’s condition and treatment from January 2022 until present. The Tribunal Member would defer making her decision until 4:00 pm on 9 November 2022.
The representative subsequently advised the Tribunal that they ceased to act for the applicant on 8 November 2022.[4] The Tribunal has not received any subsequent information since the letter of 2 November 2022. The Tribunal has had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[5] In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal. [6]
[4] Email from representative on 8 November 2022 at 5:23pm
[5] s.2A of the Administrative Appeals Tribunal Act 1975 (Cth)
[6] s.359C(1) and s.359C(2) [Part 5] of the Migration Act 1958 (Cth)
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born in 1975 and is thus currently 47 years of age. The applicant has not applied for a permanent visa while in Australia which was refused. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.
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.
The delegate’s decision record detailed the applicant’s migration history. The applicant first arrived in Australia over nine years ago on 2 November 2013, as the holder of a Visitor (Subclass 600) visa. Since this time, he has only been absent from Australia for a total of 328 days. Twenty-seven days after arriving in Australia, the applicant applied for a Temporary Work (Subclass 457) visa. The visa was refused on 13 March 2018. The applicant subsequently sought both administrative and judicial avenues of review, including at the Federal Court on 26 June 2018. The applicant subsequently withdrew his application on 16 February 2022. Approximately two months later on 20 April 2022, the applicant applied for a Medical Treatment (Subclass 602) visa which was refused and is the subject of this review. The applicant has not held a substantive visa since 2 December 2013.
Departmental records confirm that the applicant currently has an outstanding debt to the Commonwealth of Australia in the amount of $4000. [7]
[7] Delegate’s decision record
VISA APPLICATION
The applicant identified that he was in Australia, residing in New South Wales (NSW) with his brother. He is a citizen of Pakistan. At the time of application, the applicant wrote that the purpose of his stay in Australia was medical treatment. He claimed his stay would be self-funded and that he would be financially supported by his brother who ‘will pay for the applicant’s medical expenses’. In support, the applicant provided various bank statements belonging to his brother, including a Commonwealth Bank of Australia statement dated 10 March 2022 with a closing balance of $68,638.37. He indicated that he would be under medical care for 12 months from 20 April 2022 until 20 April 2023 to seek treatment for ‘coronary artery disease with ongoing symptoms needing active treatment’. The applicant claimed his ‘symptoms if not treated could result in death’. The estimated cost of treatment was approximately $15,000.
In the applicant’s visa application, he declared that he has a brother who resides in NSW. The applicant declared that he has complied with the visa conditions of any visa held in Australia or any other country and has not departed outside the authorised period of stay. The applicant declared that on 1 August 2019 he was granted a Bridging visa (Subclass 020) which had a no work 8101 condition. The applicant declared that he had previously had a Subclass 457 Temporary Working visa and a Medical Treatment visa refused.
Attached to the visa application was a Form 1507 signed by Dr Anwar Ahmad Shahzad on 1 March 2022. It detailed the medical condition requiring treatment as ‘coronary artery disease with history of CABG’.[8] The treatment information recorded was ‘He is on medical treatment for coronary artery disease with ongoing symptoms needing active treatment’.
[8] Coronary Artery Bypass Graft Surgery (CABG) – accessed on 28 November 2022
Also attached to the application was a letter from Dr Kaimin Huang, Registrar for Dr Mikhail Altman of the Department of Cardiology dated 20 January 2022. It detailed the following:
a.The applicant was reviewed by the Cardiology Rapid Assessment Team (CRAT) on 20 January 2022. He was referred following an admission to Auburn emergency with chest pain on 9 January 2022;
b.Risk factors: Diabetes type 2 an oral hypoglycaemic, hypertension on medication, hyperlipidaemia on medication, family history of IIHBD, CA Triple vessel disease (2020), Known to Dr Desai - Procedure CABG x 3 LIMA-LAD; LRA (Extended from LSV off Ao) Ramint-RPL Bx. Ex-smother. Time since last cigarette more than 12 months.
c.Past medical history: Ischemic heart disease – CABG 2020, type 2 diabetes mellitus, hypertension, Dyslipidaemia. Previous coronary artery bypass grafting in 2020 and multiple cardiovascular risk factors.
d.Social History: Lives with brother who is well. Applicant double vaccinated COVID. Ex-smoker. NIL alcohol.
e.Observations:
ECG findings normal sinus. The applicant reports noticing discomfort in his chest since about two to three weeks ago. He reports it as a mild tightness in the centre of the chest occasionally associated with some numbness in the chest, that develops intermittently and noticeably mostly when walking or exerting himself. Symptoms are relieved with rest. He is noticed the symptoms on one occasion while resting in bed. He denies any radiation of the pain to the jaw, back or arm. He also denies any associated dyspnoea, palpitations or presyncope. The symptoms do not limit his ability to walk long distances. He denies any orthopnoea or lower limb swelling. After experiencing this pain for several days, he presented to his local doctor and was referred to Auburn emergency for review. There was no suggestion of an acute coronary syndrome with serial troponins negative and ECGs demonstrating normal sinus rhythm. He was sent home with plans to have a CT coronary angiogram done and early follow up in this clinic.
The applicant has a significant history of heart disease after being diagnosed with triple vessel coronary artery disease following a presentation to Westmead hospital in February 2020 with angina. He subsequently underwent bypass surgery with LIMA to LAD graft and a composite SVG/radial graft from the aorta to the ramus intermediate and RPL. He last saw his cardiologist Dr William Chik in May 2021, and reportedly had a normal stress echocardiogram at the time.
On examination on 20 January 2022 the applicant's blood pressure and pulse rate was regular. There was no peripheral oedema. Recent CT coronary angiogram demonstrated an occlusion of the graft arising from the aorta with patent LIMA graft anastomosed to LAD. There was soft plaque of circumflex with high-grade stenosis of greater than 70% and mixed distal RCA plaque with mild stenosis.
The applicant was reviewed by cardiologist Dr Mikhail Altman. Applicant recommended increasing medication (Metoprolol 25 mg BD (previously 12.5mg BD) and commencing Imdur 60mg daily) and provided with script for sublingual nitroglycerin. Applicant to present to hospital for review if has ongoing pain. Otherwise we are happy for him to be discharged from this clinic and follow up with his usual cardiologist Dr Chik as soon as possible to decide on further investigations and management of his blocked graft and stable angina.
Also attached to the application was a letter from Dr Anwar Shahzad dated 1 March 2022, confirming that the applicant attended a consultation with his brother. At this consultation, Dr Shahzad explained the findings of a coronary anglogram and informed the applicant about Percutaneous Old Balloon Angioplasty (POBA). Opinion is to pursue ‘medical therapy’. Requesting ‘persantin scan’ and applicant was advised ‘for further tests and his medical management can be further modified based on the results of the test’. Applicant to strictly comply with medications.
The Tribunal has also had regard to various documents submitted to the Department including the passports of the applicant’s wife and three sons aged, 14, 11 and eight years of age, a Bupa letter confirming a medical assessment on 4 August 2022 and a letter from the applicant’s representative dated 28 April 2022 which stated the following:
Our client instructs that he is very unwell and suffering from serious pains daily. He has undergone many medical tests to try and find the cause of the blockage in his heart since he had bypass operation not too long ago and doctors do not want to do such a major operation so soon again. His condition is changeable and
Our client instructs that if he goes overseas now, the Pakistani doctors will not know his medical history which will be of itself detrimental to his care. The medical treatment available in Pakistan is not to the same standard as he is receiving now in Australia. He is concerned that there are counterfeit medications in Pakistan which if he unknowingly takes, may be fatal. Our client feels it would be life threatening to send him back to Pakistan in his current state of health and he is concerned for his life.
Our client has booked a further medical examination with BUPA on 4 August 2022 so that he may have the opportunity to provide further medical evidence regarding his changing condition and ongoing treatment.
The Bupa document relates to a medical examination and chest X-ray for the purposes of the applicant’s visa. There is nothing to indicate that it relates to the applicant’s coronary heart disease. No evidence was provided confirming the applicant underwent the medical examination and/or the result.
As referred to in paragraph [8] above the Tribunal received a letter dated 2 November 2022 which detailed the following information:
a.The applicant has travelled between Australia and Pakistan since 2013;
b.He applied for a work visa, but it was refused due to the refusal of the sponsorship and nomination;
c.The applicant has a wife and children living in Pakistan. His wife and children have never visited Australia.
d.The applicant has been unable to return to Pakistan in the last two years due to COVID travel restrictions and his own sickness in Australia;
e.The applicant owns property in Pakistan, including farmland and warehouses which he rents and manages himself. His wife also has her own business in Pakistan;
f.The applicant does not own any properties in Australia, and he does not have any long-term commitments in Australia;
g.The applicant had an open-heart surgery and other treatments in Australia. The medical treatments he received in Australia are far better than what he could have received in Pakistan; and
h.The applicant wishes to complete his treatment in Australia and return to Pakistan after he is fully recovered because he will not be able to receive the same level of medical treatment in Pakistan.
No other medical information was provided with the application or in connection with the Tribunal review.
FINDINGS and REASONS
In the present case, the applicant seeks the visa for the purposes of medical treatment, namely for coronary heart disease. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.
There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicant’s last substantive visa, or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa.
The Tribunal has considered all relevant matters. The applicant first arrived in Australia on 2 November 2013 on a Visitor (Subclass 600) visa. Although the applicant has had several brief departures totalling 328 days, the applicant has maintained a residence in Australia for approximately nine years, a significant period of time which the Tribunal places adverse weight on.
This is further supported by the applicant’s migration history, which discloses that 27 days after the applicant’s arrival, he applied for a Subclass 457 Temporary Working visa which was refused. The applicant thereafter unsuccessfully sought both administrative and judicial avenues of review. Approximately two months after the applicant withdrew his application in the Federal Court, the applicant applied for a Medical Treatment visa. The Tribunal finds that the applicant’s migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis. Accordingly, the Tribunal places adverse weight on the applicant’s migration history.
The Tribunal has also considered the applicant’s claims regarding medical treatment in Australia. The Tribunal accepts that the applicant has a history of heart disease and underwent a CABG in approximately February 2020. However, the applicant has not provided any current or other relevant evidence which indicates that he is undergoing medical treatment and that he intends to stay temporarily in Australia for the purposes of medical treatment.
The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 and two letters filed in support. Approximately nine months has passed since those documents were completed and no updates on treatment have been provided. The Tribunal finds this perplexing given the applicant’s claims that he is ‘very unwell’, ‘suffering from serious pains daily’, ‘requires active treatment’ and his symptoms could ‘result in death’. The Tribunal further notes that the applicant was discharged from Westmead Hospital on 20 January 2022, with instructions to ‘follow up with his usual Cardiologist Dr Chik as soon as possible to decide on further investigations and management’ and that the applicant last saw his cardiologist in May 2021, one and a half years ago. As indicated in the letter dated 2 November 2022, the applicant is yet to attend a consultation and only sought to make an appointment upon being invited by the Tribunal to attend a hearing. There is no evidence of any admissions to emergency at hospital. The Tribunal notes that the Bupa health examination relates to the applicant’s visa/immigration health examination, and not the applicant’s coronary artery disease as submitted by the representative. Overall, the Tribunal considers the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) indicates that the applicant did not apply for the visa for medical treatment but did so to maintain an ongoing residency in Australia.
While it may be the applicant’s personal preference to remain in Australia for medical treatment, there is no evidence that the applicant could not receive medical treatment for heart disease in his home country, Pakistan. The Tribunal has also considered the applicant’s claims that he is at risk of death in Pakistan due to counterfeit medications. However, there is no evidence before the Tribunal that the applicant would be at risk of death or serious injury from counterfeit medications. There is also no evidence before the Tribunal that the applicant is unfit to undertake international travel and depart Australia or that the applicant’s health condition is life threatening. Consequently, this raises serious doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted but intends to continue an ongoing residence in Australia.
There is no information or evidence before the Tribunal regarding the applicant’s personal and economic circumstances that would encourage him to return to his home country at the end of the proposed stay. While the Tribunal accepts that the applicant has some remaining family in Pakistan, including a wife and three sons aged between eight and 14 years, as the applicant has remained in Australia for over nine years and has spent limited time in offshore with them, the Tribunal places limited weight on them and does not regard them as a strong incentive to return. This is particularly so, in respect to the applicant’s eight-year-old son, born in 2014 of whom the applicant has spent less than a year with in Pakistan. In contrast, the applicant has a brother who he resides with in Australia and who provides the applicant with financial support.
Although the applicant claims to have various rental properties in Pakistan, no corroborative evidence was provided in support of this claim. Even accepting that the applicant owns various rental properties, as these properties are occupied by third parties and as the applicant has successfully managed these rental properties remotely from Australia for over nine years and spent an extensive period of time onshore in Australia, the Tribunal does not regard these properties as being a strong incentive to return home. Consequently, limited weight is placed on them. There is no evidence before the Tribunal as to the applicant’s employment prospects in Pakistan. The Tribunal further notes that the applicant sought a 457 working visa merely 27 days after his arrival onshore which raises considerable doubts that the applicant has a strong incentive to return home to Pakistan.
Of significance, the Tribunal notes the applicant is now 47 years of age, having first come to Australia as a 38-year-old. The Tribunal considers that the applicant has now spent a good part of his adult years in Australia, over nine years and that starting over in Pakistan will present challenges to the applicant. Whatever the motivation for the applicant remaining in Australia, it would appear that the conditions here have encouraged the applicant to continue remaining in Australia and there are little personal and/or economic reasons for him to return to Pakistan. On the basis of the applicant’s migration history, the paucity of the medical evidence, and the information submitted in his visa application, the Tribunal does not have confidence, and is not satisfied, that his personal and/or economic circumstances are conducive to him returning to Pakistan.
Overall, the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
Given the above findings, cl.602.215 is not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa.
As the applicant has an outstanding debt to the Commonwealth and appropriate arrangements have not been made for payment, the applicant does not satisfy public interest criteria 4004 and thus cl. 602.217(1) of the Regulations.
decision
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Naomi Schmitz
Member
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