Alhaj Ahmad (Migration)

Alhaj Ahmad (Migration) [2023] AATA 1057 (23 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ahmad Alhaj Ahmad
REPRESENTATIVE:  Mr Sam Issa
CASE NUMBER:  2205969
HOME AFFAIRS REFERENCE(S):          BCC2022/107568
MEMBER:Mara Moustafine
DATE:23 April 2023
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 23 April 2023 at 5:25pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – permanent visa application – serious work-related injury – limited current medical evidence – compensated ongoing treatment – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Lebanon and is 29 years of age. He first arrived in Australia on 14 August 2015 as the holder of a Partner (Provisional) (subclass 309) visa. Apart from one short departure in 2018, he has maintained residency in Australia ever since. On 17 June 2014, the applicant applied for a Partner (Migrant) (subclass 100) visa, which was refused on 15 September 2016. The applicant unsuccessfully sought review at the Tribunal and then applied for judicial review but withdrew this application on 28 January 2022. The applicant has not held a substantive visa since 15 September 2016 and has not departed Australia.
The applicant applied for a Medical Treatment on 1 February 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).
With his application, the applicant provided a copy of his Lebanese passport and a Form 1507 (Evidence of intended medical treatment) signed by Dr D.F. Rowais on 31 January 2022 which stated the applicant required treatment for ‘Surgery on 18/02/2020 Royal Melbourne’ for which the treatment was ‘second surgery at Royal Melbourne 29/01/2021’. In his application form the applicant stated that he would be under medical care from 6 June 2022 to 6 July 2022 and that his stay in Australia would be self-funded from his savings and workers compensation payments.
Supporting documents provided included letters from Royal Melbourne Hospital (RMH) relating to two procedures under the care of the Plastic Surgery Unit: firstly, extensor wrist laceration on 27 February 2020 and secondly, ‘Repair left hand EDM tendon + extensor tendon tenolysis of left hand EDC’ on 29 July 2021; and confirmation letters of appointment to a specialist clinic at RMH on 5/8/2021 and 26/10/2021, a letter from RMH advising rescheduled appointment from 12/01/2022 to 2/3/2022.
The Department wrote to the applicant on 2 February 2022, seeking further evidence to support claims made regarding his intention to comply with visa conditions, be a genuine temporary entrant and his incentive to depart Australia. In response, the applicant’s representative provided the following information on 7 February 2022:
·Our client initially arrived in Australia on 14 August 2015 as a holder of a Partner (Provisional) (Subclass 309) visa and apart from one short departure in 2018, he has maintained residency in Australia, whilst pursuing merit and judicial review;
·He suffered a serious work-related left wrist injury on 27 February 2020, rendering him incapacitated to continue his normal duties as a tiler. He continues to receive workers compensation payments as well as ongoing rehabilitation initiatives;
·He initially underwent surgery on his left wrist on 28 February 2020 and a second surgery on 29 July 2021. He is required to undergo a third surgery to his left wrist as well as ongoing rehabilitation;
·His work-related injury presents circumstances that are beyond his control and is in genuine need of further medical treatment, including further surgical intervention and rehabilitation;
·Prior to sustaining the work-related injury and medical prognosis for multiple corrective surgeries he had no intention to apply nor did the need arise for a medical treatment visa;
·Despite his previously demonstrated intention to remain permanently in Australia, given the irreconcilable breakdown of his relationship with his Australian citizen nominator partner, he no longer harbors such aspirations beyond the period required to undergo the necessary medical treatment.
Supporting documents provided included copies of documents previously provided and certificates of capacity from the Transport Accident Commission regarding his work related injury; documents sent by RMH to applicant’s doctor on 31 January 2022 regarding discharge from outpatient surgery to repair left hand EDM tendon on 29 July 2021 with follow up indicated as hand therapy and pain medications but no ‘intention to readmit’; and RMH clinical notes dated 26 October 2021 regarding the applicant’s visit to review hand surgery which stated, among other things:
overall doing ok; feels tight/scarred under scar’ still some pain/hypersensitivity in area; however, seeing physio/HT (Action Rehab) and feels slowly making gains… Discussed that he may still see some improvement in hand function but unlikely to be back to full pre-op level. No further surgery currently indicated - the more surgeries the more scarring. If hypertrophic scar becomes more of an issue, could offer intralesional steroid injection, but not at this stage.
On 4 April 2022 a delegate of the Minister of Home Affairs refused to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act) because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, highlighting the amount of time the applicant had spent in Australia and his migration history, including that the applicant had unsuccessfully applied for a permanent visa onshore and taken every opportunity to seek review. The delegate concluded that the applicant intended to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis.
On 22 April 2022 the applicant lodged an application for review of that decision, a copy of which he provided to the Tribunal for the purpose of the review. The applicant was represented in relation to the review.
On 13 March 2023 the applicant was invited, pursuant to the provisions of s.359(2) of the Act, to provide information to the Tribunal as follows:
·     Information about the medical practitioner and/or medical facility providing your treatment, including name, address and telephone number.
·     Information about your arrangements to carry out the medical treatment, for example:
a.confirmation from your medical practitioner and/or medical facility that they agree to treat you;
b.the nature and estimated duration of your treatment;
c.the proposed date(s) of your treatment; and
d.the possible cost of your treatment.
·     Any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
The applicant’s representative responded on 23 March 2023, providing copies of the documents listed below. He also advised the applicant will be obtaining a further report from his surgeon which they anticipate will include a date of the surgery and associated costs, and the report would be provided to the Tribunal prior to the hearing.
a.A letter from Dr Haissam Naim, the applicant’s treating practitioner, dated 22 March 2023, which stated that his orthopaedic surgeon, Dr Sina Babazadeh had advised him to have surgery to improve his left wrist function;
b.A letter from Dr Haissam Naim, the applicant’s treating practitioner, dated 31 October 2022, in which he summarised the applicant’s medical issues and stated that due to the applicant’s persistent pain, ‘it is advised to minimise the jobs that require heavy duty’; that the orthopaedic surgeon that followed up his condition stated that she ‘can't foresee the improvement of his condition in the coming years and I agree with her’ and that, as the applicant’s injury had affected him mentally, ‘he was undergoing treatment for anxiety and depression and might need to consider further surgery in the future’.
c.a copy of a medical report from Orthopaedic surgeon Dr Sina Babazadeh dated 12 October 2022 which assessed the applicant’s ongoing left wrist pain, weakness and numbness and indicated a plan to ‘consider further surgery as a last resort if patient cannot cope with current disability’. The report noted that the applicant:
has had multiple operations performed at the Royal Melbourne Hospital, but still complains of weakness and pain in that wrist and numbness in the ulna aspect of his hand.
His current reduced level of function appears to be related to his previous injury. He feels that given his weakness, reduced sensation and pain, he is unable to perform manual labour, which was his previous occupation. He may struggle to find any work that requires him to have dexterity and strength in both hands. I can't foresee that his condition will significantly improve over the coming year.
Overall I have suggested …that I can try arthroscope his wrist, define the damage intra-articularly and excise the ganglion, however I feel that this will not significantly improve either his strength, numbness or pain.
Currently [the applicant] would like to think about further surgery, but at this stage is reluctant to proceed as he has not had favourable results from previous surgery, which is understandable.
d.A report dated 1 November 2022 from Dr Samir Ibrahim, Senior Consultant Psychiatrist of Northpark Hospital which stated that he had assessed the applicant after seeing him between August and October 2022. His ‘working diagnosis was that the applicant had ‘Adjustment Disorder: mixed anxiety and depression symptoms’ for which he was prescribed medication and referred for counselling. He attributed the applicant’s condition to his workplace injury, the lack of improvement after several surgeries and his realisation that he had ‘lost an important and significant part of his mobility, which will affect the activities of his daily living’ and had started ‘to grieve his body efficiency, as well as the future he dreamt to achieve especially after immigrating to Australia the lucky country.’ Further he noted that the applicant ‘is trying to find a way to stay in Australia’, was ‘talking about his dreams to be re-skilled in a different career which could shift him from manual work to office-based work’ and was ‘keen to consider’ learning the English language to enable this.
On 13 April 2023, the applicant’s representative provided a Statutory Declaration signed by the applicant, making the following relevant points:
Background
·I conceded that I have previously demonstrated my intention to remain permanently in Australia by virtue of the fact that on 17 June 2014, I applied for a Partner (Migrant) (subclass 100) visa.
·The Department of Immigration made a decision to refuse my Partner (Migrant)(subclass 100) visa on 15 September 2016.
·Subsequent to the Department's primary decision, I applied for a merit review, with this Tribunal.
·Regrettably, my former legal representative failed to lodge the application for a review within the prescribed time frame and according, the Tribunal made an adverse threshold jurisdictional finding.
·Following the Tribunal decision, I filed a judicial review application, but subsequently withdrew that application and lodged a Medical Treatment (subclass 602) visa on 1 February 2022.
Work related injury
·On 27 February 2020, whilst employed as a wall and floor tiler, I sustained a serious left-wrist injury, whilst using an angle grinder I accidently cut my left wrist, causing sever nerve damage.
·I have had two separate unsuccessful surgeries on my left wrist. Neither surgery has alleviated the numbness and ongoing severe pain.
·I have also filed an application for Workers Claim Impairment Benefit form.
·A report by Dr Graeme Doig gives me a 14% impairment.
·I have been receiving ongoing treatment for my injury. Recently I was prescribed with a trial cortisone injection in the hope of alleviating the serious pain and avoid a possible third wrist surgery. I attach copy of medical report by orthopedic surgeon, Dr Sina Babazadeh.
·My medical treatment is being funded by WorkSafe Victoria, though Gallagher Bassett Services Workers Compensation VIC Pty Limited.
·Unfortunately, the trial cortisone injection thus far has not been approved for funding, meaning that a third surgery is now looking increasingly likely as being my only option. I have been advised by my orthopedic surgeon that surgery may likely take place in either August or September this year.
·Since the accident, apart from medical expenses, I have also been receiving weekly workers compensation payments.
My intention to return to Lebanon
·I intend to return to Lebanon, following a successful third surgery. Apart from the short period for the purpose of medical treatment, I no longer have any ambition to remain in Australia.
·I am unable to receive appropriate medical treatment in Lebanon due to lack of funding. As stated above, my medical treatment is being entirely funded by WorkSafe Victoria.
·My statement intention to remain for a temporary period in Australia, is supported by the fact that I chose to withdraw my judicial review application and applied for a Medical Treatment visa.
Other supporting documents provided included:
a.a WorkSafe Worker’s claim for impairment benefits form
b.an Independent Impairment Assessment by Dr Graeme Doig dated 17 March 2023 which indicated that the applicant continued to suffer from chronic pain condition with restricted movement; that his condition had reached Maximum Medical Improvement with a poor prognosis with respect to regaining normal function at the wrist; and a combined whole person permanent impairment of 10%.
c.a letter dated 29 March 2023 from Orthopaedic surgeon Dr Sina Babazadeh to his doctor regarding his ongoing left wrist pain, indicating a plan to ‘Trial Cortisone Injection’. It stated that the applicant had been advised that they were unable to improve the numbness or the itchiness associated with his scar but could attend to ‘the ganglion and intra-articular wrist pathology, potentially via excision of ganglion and wrist arthroscopy’. The report went on to say:
However, I am unable to prognosticate how much this would improve his symptoms. Overall, his is a complex injury, and hence his response to treatment is a little unpredictable.
After some discussion we have decided to trial an intra-articular cortisone injection to the wrist. Should this have good effect but the pain re-occur, then surgery may be beneficial. Should it have no affect on his symptoms, then I would avoid surgery to the wrist.
The applicant appeared before the Tribunal by MS Teams video-conference on 18 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 applicant has a genuine intention to stay temporarily for the visa purpose.
Relevantly to this matter cl. 602.215 provides:
(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.
Is the applicant unfit to depart Australia?
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(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.
According to the biodata pages of his passport, the applicant was born on 8 May 1993. As he has not turned 50, the requirements in cl.602.212(6) are not met. There is no suggestion that any of the other alternative sub criteria are relevant in this case.
Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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).
As set out above the applicant does not meet the requirements in cl 602.212(6).
The applicant seeks the visa for surgery on his left wrist. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.
With regard to the requirement that the applicant must have a genuine intention to stay temporarily for the purpose of medical treatment or related matters, his original application indicated that he required surgery on his left wrist. His application form stated that he would be under medical care from 6 June 2022 to 6 July 2022. In response to the Tribunal’s request for information regarding arrangements for his medical treatment, the applicant confirmed that he had two surgeries on his wrist – in February 2020 and July 2021 – but said he was still experiencing pain and required further treatment. While reports from various doctors were provided, discussing surgical and cortisone injection options, no conclusive advice was provided regarding the medical treatment going forward, its estimated duration, proposed dates and possible costs or whether his medical practitioner had agreed to treat him.
At his hearing the applicant confirmed that since his last surgery in July 2021 he was having physiotherapy and taking pain medication but, as his pain was not easing, he now wanted to have more surgery. However, two letters he provided from his orthopaedic surgeon, Dr Sina Babazadeh, indicated that surgery should only be used as ‘a last resort’, suggested he first try treatment by cortisone injection and questioned whether further surgery would be effective (paragraphs 10.c and 12.c). This was consistent with the advice provided in October 2021 (paragraph 6) by RMH, where the applicant had his previous two surgeries. Although the applicant stated in his statutory declaration of 23 March 2023 that his orthopaedic surgeon had advised that surgery might take place in either August or September 2023, he was unable to provide evidence of this.

When asked why he had not pursued the cortisone injection option suggested by his orthopaedic surgeon, the applicant claimed that WorkCover told him they would not pay for a ‘trial’ with an injection whose outcome was unknown but supported surgery, although he provided no evidence of this. As discussed with the applicant, it was not the role of WorkCover to determine appropriate medical treatment. Moreover, a cortisone injection was not a ‘trial’ drug and, as made clear by his orthopaedic surgeon, the outcome of the surgery was no more certain than the outcome of the injection. The applicant claimed that WorkCover were providing him with weekly payments and covering his medical expenses so he wished stay in Australia to continue his treatment but later clarified that WorkCover had, in fact, not been paying him for the past three months as he had reached the limit of 130 weeks of treatment. He said he was still able to make a compensation claim through the courts.
As discussed with the applicant the issue before the Tribunal was not who paid for his treatment but the lack of clarity regarding his proposed medical treatment and its estimated duration. The Tribunal is concerned that, since he submitted his Medical Treatment visa application on 1 February 2022, the applicant had not had any treatment other than physiotherapy and medication and had not taken his doctor’s advice regarding steroid or cortisone injections or the unlikely effectiveness of further surgery. The applicant claimed that he just wanted to complete his treatment, which he estimated would take about six months, then return to Lebanon because WorkCover was paying for it. However, as discussed with the applicant, he has not provided the Tribunal with any evidence of a clear medical pathway or timeframe for completion of his treatment.
In a discussion of his migration history, the applicant confirmed that, at the time he came to Australia in 2015 on a provisional Partner visa, he wanted to stay here permanently. However his application for a permanent Partner visa was refused by the Department on 15 September 2016 because he and his partner separated and she did not support his application any further. He said he applied for review of the decision because he was trying to reconcile with his partner. Since his wrist injury, however, he no longer wanted to stay in Australia but to return to Lebanon after he completed his treatment in about six months.
The applicant’s claim that he wishes to return home is seriously undermined by comments reported by his psychiatrist, Dr Ibrahim in his letter of 1 November 2022 that the applicant was ‘trying to find a way to stay in Australia’ and had discussed with him his ‘dreams to be re-skilled in a different career’, doing office-based work to which end he was ‘keen to consider’ learning English. While the applicant claimed that the discussions with Dr Ibrahim took place in 2020, the doctor indicated in his report that his assessment was based on meetings with the applicant between August and October 2022 (paragraph 10.d). Such comments made in an open discussion with a medical practitioner raise serious doubts that the applicant genuinely intends to remain temporarily in Australia for the purpose of medical treatment.
Further, the applicant claimed several times that his withdrawal of his judicial review application and application for a Medical Treatment visa is proof of his intention to remain in Australia for a temporary period. As discussed with the applicant, however, the Tribunal’s view is that it may have had more to do with the fact that he and his wife were no longer married and he was not confident of success at the court. By the applicant’s evidence at hearing, he and his former wife divorced in 2020, yet he only withdrew his application for judicial review in 2022.
As discussed with the applicant at hearing, the Tribunal also finds curious his claim in his statutory declaration that his former legal representative failed to lodge his application for a review within the prescribed time frame and the Tribunal made an adverse jurisdictional finding. This is inconsistent with the fact that the Tribunal did consider his applicant and affirmed the decision of the Department because his sponsor had withdrawn her support.
There is no evidence that the applicant did not comply with the conditions of his last substantive visa, the Partner visa on which he entered Australia in 2015. More telling, however, is that the applicant has not held a substantive visa since 15 September 2016 and has not departed Australia.
The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject, in particular condition 8201 (No studies) and 8503 (The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia). Based on the comments of his psychiatrist Dr Ibrahim, the applicant has expressed an interest in a career change to office based work. This may require him to undertake study for the purpose of acquiring new skills, including learning the English language, which he indicated to his doctor he was ‘keen to consider’. The Tribunal is therefore not satisfied that the applicant will comply with condition 8201.
With regard to condition 8503, the Tribunal considers that the applicant has a strong motivation and intention to remain in Australia. This is evidenced by his previous application for a permanent Partner visa, which he pursued through merits and judicial review, his presence in Australia since August 2015, as well as the evidence of his psychiatrist that the applicant was trying to find a way to remain in Australia. In light of this, the Tribunal is not satisfied that if condition 8503 were placed on any visa, the applicant might not seek to obtain a waiver of such a condition.
Having considered the absence of evidence of a clear medical treatment pathway, his failure to depart at the end of the period originally sought for medical treatment, the length of time he has been in Australia, his previous application for a permanent Partner visa and the evidence of his psychiatrist that the applicant was trying to find a way to remain in Australia, the Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.
Given the above findings, cl 602.215 is not met.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Mara Moustafine
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).

[2023] AATA 1057

23 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction