Akagunduz (Migration)

[2021] AATA 5579

Akagunduz (Migration) [2021] AATA 5579 (11 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Riza Akagunduz

CASE NUMBER:  2008114

HOME AFFAIRS REFERENCE(S):          BCC2020/1195262

MEMBER:Mark Bishop

DATE:11 November 2021

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 11 November 2021 at 4:26pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – medical treatment requirements – unfit to depart – genuine temporary entrant – adverse migration history – unsuccessfully applied for a permanent visa onshore – unlawful non-citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 28 April 2020 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 March 2020. 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 11 November 2020 the applicant advised the Tribunal in writing he would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. The applicant advised the Tribunal he would rely on documents previously provided to the Department of Home Affairs.

4. The Tribunal resolved the review application on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Are the medical treatment requirements met?

7. 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.

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

9. The delegate summarised the applicant’s visa and immigration history as follows:

   ·On 07 November 2011, the applicant arrived in Australia as the holder of a Student (subclass 575) visa.

   ·On 29 December 2011, the applicant lodged an application for Protection Visa which was refused on 28 June 2012. The applicant has unsuccessfully sought various avenues of review of the refusal decision including AAT.

   ·The applicant currently holds a/Bridging (subclass 050) visa;

   ·During their time in Australia, the applicant has been an unlawful non-citizen from 25 July 2014 until 30 July 2014 and from 18 November 2014 until 22 April 2020.

10. Clause 602.215 provides as follows:

    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.

11. Clause 602.215 in Schedule 2 of the Migration Regulations is a criterion that must be satisfied. That is, that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

12. It is necessary for the applicant to satisfy subclause 602.215(1) if they have not satisfied the requirements of subclause 602.215(2). 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.

13. The delegate made the following findings:

    ·“On 12 March 2020 the applicant lodged a valid application for a Medical Treatment (subclass 602) visa. At that time the applicant held no visa and was present in Australia as an Unlawful Non-Citizen. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia. It is claimed that the applicant suffers from PTSD and depression and requires counselling, psychoeducation and skills training in stress management and hygiene.

    ·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 they must remain in Australia for ongoing consultation. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.

    ·In their Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future. Departmental records confirm that the applicant has unsuccessfully applied for a permanent visa onshore and has taken the opportunity to present their case or circumstances for review. The applicant has also spent a lengthy period of time as an Unlawful Non-Citizen. I find that their adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on a permanent basis.

    ·I have considered the claims and supporting evidence that the applicant has provided with their application. I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

    ·I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.”

14. The applicant did not make available to the Tribunal “a written statement to that effect from a Medical Officer of the Commonwealth”. The Departmental file and the Tribunal file did not contain “a written statement to that effect from a Medical Officer of the Commonwealth”.

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

16. Hence the applicant does not meet the criteria set out in cl.600.215 (2).

17. The Tribunal reviewed all the material on the Departmental and Tribunal files. The applicant advised the Tribunal in writing he wished to rely on information previously provided to the Department of Home Affairs. The Tribunal reviewed the Application for a Medical Treatment Visa dated 17 March 2020 and the Form 1507 dated 16 March 2020. The applicant did not make available to the Tribunal any medical reports or medical opinions or reports addressing his medical condition that post-dated this application and relevant supporting form.

18. The applicant has not made a written submission to the Tribunal. The applicant advised the Tribunal he would not attend a hearing. The applicant consented to the Tribunal determining the review application on the papers.

19. There is only minimal information that addresses GTE matters. The applicant has not challenged any of the findings of the delegate. The applicant was an unlawful non-citizen 18 November 2014 until 22 April 2020. The applicant has a history of sequential and protracted periods of being an unlawful non-citizen.

20. The applicant does not satisfy the requirements of cl.600.215 (1).

21. The Tribunal Is not satisfied the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.”

22. As clause 602.215 is not met by the applicant, the Tribunal finds the criteria for the grant of a Medical Treatment visa are not met by the applicant. Therefore, the Tribunal refuses the application by the applicant for a Medical Treatment visa.

    Decision

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

    Mark Bishop
    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).