Akhtar (Migration)

[2022] AATA 3583

Akhtar (Migration) [2022] AATA 3583 (8 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Javed Akhtar

REPRESENTATIVE:  Mr Stephen John (MARN: 1571637)

CASE NUMBER:  2017460

HOME AFFAIRS REFERENCE(S):          BCC2020/2481839

MEMBER:Nathan Goetz

DATE:8 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2022 at 4:46pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 –applicant failed to provide requested information – no current medical evidence that the applicant still has any medical condition requiring treatment – more of the applicant’s immediate family is in Australia than in Pakistan – incentive to remain in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363

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 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 was represented by a registered migration agent.

3. On 16 October 2020 the applicant applied for the visa. 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).

4. On 17 November 2020 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 602.215. On 4 December 2020 the applicant applied to the Tribunal for review of the decision to refuse to grant the visa.

5. On 22 July 2022 the Tribunal wrote to the applicant for two reasons.

6. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing at 10:00am on 15 August 2022 so the applicant could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal did not consider it appropriate to decide the review on the basis of the material it had, and no other exceptions to the hearing requirement applied at that time: s 360(3) of the Act.

7. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The request for information is detailed later in this decision record. The request for information advised the applicant that if the applicant did not provide the Tribunal with the information requested within the prescribed timeframe then the Tribunal hearing would be cancelled: ss 360(2)(c), 360(3). There is no power to hold a Tribunal hearing where there has been non-compliance with a request for information under s 359(2): s 363A of the Act.

8. On 1 August 2022 the applicant responded to the Tribunal hearing invitation with a completed ‘Response to hearing invitation form.’ The response indicated that the applicant and the representative would attend the Tribunal hearing and that ‘medical and submissions of the representative’ could be documents relied upon at the Tribunal hearing. There was also request by the representative for the Tribunal hearing to be postponed until 11:00am as the representative was unavailable at 10:00am. The Tribunal delayed a decision on the request for postponement because if the applicant did not provide the information requested under s 359(2) then no Tribunal hearing could be held, meaning that the postponement request would be unnecessary.

9. By 5 August 2022, the applicant had not provided the Tribunal with the information it requested, so the Tribunal hearing was cancelled, and the Tribunal has made a decision on the review without taking any steps to allow or enable the applicant to appear at a Tribunal hearing.

   CRITERIA FOR THE MEDICAL TREATMENT VISA

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

11. 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.

12. 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.

    CONSIDERATION

    The applicant and his migration history

13. In the visa application form, the applicant identifies as a 61-year-old male citizen of Pakistan presently located. He holds a Pakistan passport expiring on 31 May 2026. He was born in Faisalabad, Punjab state, Pakistan and is married.

14. The applicant’s movement records demonstrate that he was offshore when granted a Temporary Work (Skilled) visa (subclass 457) visa on 23 January 2012. He arrived in Australia on 17 August 2012 holding this visa. During the currency of this visa, he departed Australia on 7 July 2013 and returned to Australia on 20 August 2015. This visa expired on 23 January 2016.

15. On 20 January 2016 the applicant applied for a Medical Treatment (Subclass 602) visa. On 21 January 2016 the applicant was granted a Bridging A (Subclass WA) visa to regularise his migration status while the medical treatment visa application was considered. On 11 May 2016 the applicant was granted a Medical Treatment (Subclass 602) visa and the bridging visa expired as a result. The medical treatment visa was valid until 23 January 2018.

16. On 22 June 2017 the applicant applied for an Aged Parent (Residence) (Subclass 804) visa and on 26 July 2017 the applicant was granted a Bridging A (Subclass WA) visa to regularise his migration status while the aged parent visa application was considered. On 17 September 2020 the applicant withdrew the aged parent visa application and the bridging visa ceased on 22 October 2020 as a result.

17. On 16 October 2020 the applicant applied for the Medical Treatment (Subclass 602) visa that is the subject of the review application. On 19 October 2020 he was granted a Bridging C (Subclass WC) visa to regularise his migration status while the medical treatment visa application was considered. This bridging visa remains in effect to date.

    Visa application form and relevant material submitted to the delegate

18. In the visa application form the applicant declared that the purpose of his stay in Australia was ‘medical treatment or consultation.’ Funding for his stay in Australia will be provided by a sibling named Ijaz Ahmad Rana, who was identified as living in Australia. He detailed that in addition to the sibling who was going to provide funding for his stay in Australia, his father, mother, four siblings, two male children and one female child were in Australia.

19. The applicant detailed that he would be under medical care in Australia from 16 October 2020 until 15 October 2022. When asked to provide details of the applicant’s need for medical treatment in Australia and its estimated costs, the applicant wrote ‘need long term treatment for serious illness.’ The applicant detailed that the medical treatment would be provided by Jasvinder Kheray of the Family Medical Centre in Auburn. He intended to enter a hospital or health care facility for treatment, as it was claimed that the applicant needs ‘ongoing medical treatment for speech therapy and needs assistance for personal care.’ He expected to incur costs for blood pressure and physiotherapy because he had a few strokes and needs assistance to walk, go to the toilet and requires full time care.

20. Attached to the application form was a completed Form 1507 signed by Dr Kheray detailing the applicant’s medical condition and treatment information, as well as a letter dated 14 October 2020 from Dr Burak Dinc, chiropractor of Hauscorp, Auburn, New South Wales. The letter detailed that the applicant was a patient of the clinic receiving treatment for a brain haemorrhage and aneurysm which resulted in RHS paraplegia.

    Delegate request for more information and applicant’s response

21. Prior to making a decision to refuse to grant the visa, the delegate wrote to the applicant and invited him to comment on information. The information was:

    ·     The applicant has been working and residing in Australia since 17 August 2012.

    ·     The applicant made an attempt to reside permanently in Australia when he applied for an Aged Parent Residence (subclass 804) visa.

    ·     The applicant remained in Australia as the holder of a Medical Treatment (Subclass 602) visa for 20 months from 11 May 2016 until 23 January 2018.

22. The applicant responded to this information through a submission of his representative, noting that the applicant returned to Australia with an intention to work and visit his family, but that he had a brain haemorrhage which left him crippled and bedridden. He also underwent surgery for removal of a stone from his gallbladder. It was submitted that the applicant’s circumstances led him to remain in Australia for an extended period of time, and that since his brain haemorrhage the applicant has been in poor health and trying to rehabilitate. All of this, it was contended, provided an explanation for the time spent in Australia.

23. The applicant also provided a statutory declaration made on 28 October 2020 detailing that he arrived in Australia but later left Australia because he had much better business in Pakistan and that he did not really want to stay in Australia. He returned to Australia to work and visit his family.

24. He detailed that he suffered a brain haemorrhage on 1 September 2015 and detailed that since that time he has received continuous medical treatment. He noted that his Temporary Work (Skilled) visa (subclass 457) was due to expire, and he applied for a Medical Treatment (Subclass 602) visa which was granted but was still not fit to leave Australia at the end of that visa. He lodged the Aged Parent (Subclass 804) visa due to poor migration advice after discovering he was ineligible for this type of visa. He was not able to travel to Pakistan following the withdrawal of the aged parent visa because of his medical condition and noted that his wife was waiting for surgery and that their son is a fulltime carer for both the applicant and his wife. He declared that the lodgement of the visas was due to factors beyond his control because he has a very serious health issue and that he is struggling to survive and that his rehabilitation process is underway.

25. He also declared that the health care facilities in Pakistan are very poor. He claimed that he fears he will not be able to get proper medical treatment if he returned to Pakistan under the current circumstances. He also claimed that COVID would be a risk to the applicant and his wife due to their health conditions. He accepted that most of his family are in Australia but noted that his daughter was planning to return to Pakistan as she had no visa to further stay in Australia and noted that she and his granddaughter had arranged travel itineraries for herself and her daughter. The applicant claimed that he would return to Pakistan when he could as he still has a home and properties in Pakistan.

26. The applicant provided material to support his claimed medical condition(s):

    ·     Letter from Auburn Physiotherapy and Sports Injury Centre dated 12 February 2016, 

    ·     Letters from Auburn Family Medical Centre 28 October 2015, 16 December, 18 December 2015, 13 January 2016, 3 February 2016, 17 February 2016.

    ·     Tax Invoice from Auburn Medical Centre dated 12 December 2016, 5 January 2017, and 26 May 2017.

    ·     Tax Invoice for surgery from Nandan’s Clinic dated 12 December 2016

    ·     Tax Invoices for Medlab for services dated 14 September 2016, 15 December 2016, and 17 December 2016.

    ·     Statement of Benefits Paid from Bupa dated 5 January 2016, 19 March 2016, 6 September 2016, and 30 August 2016.

    ·     Tax Invoice for Liverpool Diagnostics for services dated 6 September 2016 and 24 January 2017

    ·     Tax Invoice for Auburn Medical Imaging for an ultrasound dated 12 May 2017

    ·     Tax Invoice from Pathology West for pathology services dated 8 December 2016

    ·     Letter from Pathology West detailing an agreed settled payment of services dated 11 November 2016,

    ·     Tax Invoices for Western Sydney Local Area Health District for services dated between September and October 2015.

    Tribunal request for information

27. On 22 July 2022 the Tribunal requested to ‘provide current information about your medical condition and current treatment.’ As detailed previously, the applicant did not respond to the request by information by 5 August 2022.

    FINDINGS AND REASONS

28. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be issued.

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

    Does the applicant satisfy cl 602.212(6) so that he does not have to satisfy cl 602.215?

30. The applicant does not need to satisfy cl 602.215 if he meets cl 602.212(6).

31. The evidence is that the applicant is in Australia and has turned 50 years of age.

32. However, there is no evidence that the applicant applied for a permanent visa and appears to have met all the criteria other than the health criteria, nor is there any evidence in writing from a Medical Officer of the Commonwealth that the applicant is unfit to depart Australia.

33. The Tribunal notes that Medical Officers of the Commonwealth (MOCs) are qualified medical practitioners appointed by the Minister for the Department of Immigration and Border Protection and are charged with undertaking assessments as required by the Health Requirement under the Migration Regulations 1994.

34. As the applicant does not satisfy cl 602.212(6), he is therefore required to satisfy cl 602.215.

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

    Length of time in Australia

35. The Tribunal accepts that a person who genuinely intends to stay temporarily in Australia for medical treatment may, in certain cases, be in Australia for a long period of time. The Tribunal is also conscious of the fact that international travel from early 2020 to date has been impacted by COVID travel restrictions meaning that some people may have been unable to return to their home country even if they desired to do so.

36. Given the timing of the visa application, the Tribunal gives the fact that the applicant has been in Australia since January 2012 no weight when making its assessments, other than taking into account the specifics of the length of time that has elapsed since any medical evidence was produced by the applicant to support his claimed medical treatment as discussed below, namely October 2020.

    Previous compliance with visa conditions

37. The Tribunal accepts that there is no evidence to suggest that the applicant has not previously complied with any conditions which attach to a visa.

    The applicant’s intention to comply with conditions to which the Medical Treatment (Subclass 602) visa would be subject

38. The Tribunal accepts that there is no direct evidence from the applicant that he would not comply with conditions which would attach to this visa.

    Lack of current information about medical condition and treatment

39. The Tribunal accepts the numerous medical documents concerning the applicant’s medical condition demonstrates that the applicant suffered a brain haemorrhage in September 2015 which required care. Presumably, it was on that basis that the applicant was granted the Medical Treatment (Subclass 602) visa on 11 May 2016.

40. However, there is no current medical evidence that the applicant still has any medical condition requiring treatment. The medical evidence ceases after October 2020. For all the Tribunal knows, the applicant’s medical condition has been fully remedied. It is for that reason that the Tribunal wrote to the applicant with a request for current information. No information was provided.

41. While the issue in this case is not whether the applicant seeks to obtain medical treatment and arrangements have been concluded to carry out the treatment per cl 602.212, the applicant’s genuine intention to stay temporarily for the visa purpose per cl 602.215 is inherently linked whether the applicant still has a medical condition and is receiving treatment for that medical condition. The absence of any evidence to demonstrate that the applicant still has a medical condition requiring treatment may demonstrate that the applicant does not genuinely intend to stay temporarily in Australia for treatment of he claimed medical condition.

42. The Tribunal is satisfied that, in combination with the other concerns that the Tribunal has outlined in this decision record, the absence of any current information about the applicant’s medical condition and treatment demonstrates that the applicant is remaining in Australia for purposes not connected with his claimed medical condition and treatment.

    Lodgement of permanent visa indicative of a desire to remain in Australia permanently

43. The applicant applied for an aged parent visa that would allow the applicant to remain in Australia permanently. While the Tribunal is prepared to accept that the applicant acted on poor advice insofar as he applied for a visa that he could not be granted, the fact remains that the lodgement of that particular visa demonstrates a desire to remain in Australia permanently. The Tribunal is satisfied that the applicant would not have lodged that particular type of visa if he did not wish to remain in Australia permanently.

44. The Tribunal is satisfied that, in combination with the other concerns that the Tribunal has outlined in this decision record, the lodgement of the permanent visa demonstrates that the applicant is remaining in Australia for purposes not connected with his claimed medical condition and treatment.

    Presence of family members in Australia indicative of a desire by the applicant to remain in Australia permanently

45. As conceded by the applicant in his written material to the delegate, the bulk of his immediate family are in Australia. The Tribunal notes the applicant’s claim that one of his daughters who he identified as being in Australia but had no visa to allow a further stay arranged travel for herself and his granddaughter to return to Pakistan, but even if that daughter and his grandchild did return to Pakistan, the fact would remain that the balance of the applicant’s family would be in Australia. In the Tribunal’s judgment, the fact that more of the applicant’s immediate family is in Australia than in Pakistan would act as an incentive for him to remain in Australia instead of Pakistan.

46. The Tribunal is satisfied that, in combination with the other concerns that the Tribunal has outlined in this decision record, the balance of the applicant’s family in Australia demonstrates that the applicant is remaining in Australia for purposes not connected with his claimed medical condition and treatment.

    Applicant’s view about the state of health care he may receive in Pakistan

47. The applicant’s written response to the delegate detailed his view that the health care facilities in Pakistan are very poor. He claimed to fear that he would not be able to rehabilitate and get proper medical treatment if he returned to Pakistan under the present circumstances.

1. Whether there is adequate medical treatment in Pakistan is not a question for the grant of the visa, but the applicant’s view of the adequacy of the treatment offered in Pakistan may suggest that, in the event that the applicant’s medical condition and treatment is ongoing, he would refuse to return to Pakistan because of the adequacy of the treatment he would receive.

2. The Tribunal is satisfied that, in combination with the other concerns that the Tribunal has outlined in this decision record, the applicant’s view about the adequacy of the Pakistan health system demonstrates his desire to remain in Australia permanently.

   CONCLUSION

3. The Tribunal does not accept that the applicant is a genuine temporary entrant to Australia. The combination of concerns that the Tribunal has leads the Tribunal to not be satisfied that he genuinely intends to stay temporarily in Australia for medical treatment.

4. For the reasons given above, the Tribunal is not satisfied that the applicant meets cl 602.215.

5. As a result, the applicant does not meet the requirements for the grant of the visa and the decision under review must be affirmed.

   decision

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

   Nathan Goetz
   Member