Ali (Migration)

[2022] AATA 1224

Ali (Migration) [2022] AATA 1224 (7 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mostafa Ali

REPRESENTATIVE:  Ms Latifa Al-Haouli (MARN: 1175724)

CASE NUMBER:  2016386

HOME AFFAIRS REFERENCE(S):          BCC2020/2232203

MEMBER:Mark Bishop

DATE:7 February 2022

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

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Statement made on 07 February 2022 at 2:20pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – an unlawful non-citizen –adverse migration history – maintaining ongoing residency – lengthy periods of unlawful overstay – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 October 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 3 September 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. The delegate refused to grant the applicant the visa.

4. The applicant appeared before the Tribunal on 7 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.  

5. The applicant provided a copy of the decision record to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. 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.

9. Clause 600.215 is set out immediately below:

   602.215

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

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

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

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

   visa would be subject; and

   (c) any other relevant matter.

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

10. 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.

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

    “the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth

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

12. 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”

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

14. The applicant was born on 1 April 1992. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

15. In a legal submission provided to the Tribunal the applicant advised he did “…not meet the criteria in clause 602.212(6) therefore is required to meet clause 602.215(1).”

16. Hence the applicant does not meet the criteria set out in cl.602.215 (6).

17. Accordingly the Tribunal turns to cl.602.215.

18. The delegate summarise the applicant’s visa/immigration history as follows:

    ·“On 03 September 2020, the applicant lodged an application for a Medical Treatment visa. It is stated that they would like to remain in Australia to seek medical treatment. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.

    ·On 28 September 2020, the applicant was sent a Natural Justice letter inviting them to comment on their intention to be a genuine temporary entrant, their incentive to depart Australia and their migration history:

    ·Departmental records demonstrate that:

    oOn 13 January 2011 the applicant arrived in Australia as the holder of a Student (subclass 572) visa and has not departed.

    oOn 20 July 2012 the applicant lodged a Permanent Protection (class XA) visa. This visa was refused on 28 September 2012 and the applicant sought review at the Refugee Review Tribunal (RRT) on 17 October 2012. On 18 July 2013 RRT affirmed the decision.

    oOn 26 August 2013 the applicant lodged a Student (subclass 572) visa. This visa was refused on 22 November 2013 and the applicant sought review at the Federal Court on 08 May 2014 and withdrew on 12 February 2015.

    oOn 15 April 2014 and 12 September 2014 the applicant lodged two further Permanent Protection (class XA) visas which were deemed invalid under section 48.

    oOn 26 October 2016 the applicant lodged a Partner Visa (class UK) visa. This visa was refused on 20 April 2017 and the applicant then sought review on 01 May 2017 at the Administrative Appeals Tribunal (AAT). On 14 October 2019 the AAT affirmed the decision. The applicant then sought a further review at the Federal Court on 07 November 2019. This resulted in an outcome of Minister Win being recorded on 12 February 2020.

    oOn 14 April 2020 the applicant lodged an application for a Medical Treatment (subclass 602) visa which was refused on 28 May 2020 as the applicant was found not to be a genuine temporary entrant.

    oOn 01 July 2020 the applicant lodged another Medical Treatment (subclass 602) visa which was refused on 30 July 2020 as the applicant was found not to be a genuine temporary entrant.

    oOn 03 September 2020 the applicant lodged this third application for a Medical Treatment (subclass 602) visa and has been granted a Bridging visa E (class WE) (subclass 050) visa in association.

    oDuring their time in Australia the applicant has been an unlawful non-citizen for multiple periods including between 20 December 2013 and 09 April 2014, 29 October 2016 and 20 April 2017 and 11 March 2020 and 22 April 2020.

    oA response period of seven days was afforded to the applicant to provide a response to the Natural Justice letter regarding their Migration History.

    oThe applicant’s agent request additional time to provide a submission that was approved until 15 October 2020

    oA response was received that explained in detail the applicant’s circumstances since their arrival in Australia and tells how the applicant claims to have received poor or no information from migration agents regarding his immigration status, unfamiliarity with visa processes and limited English skills. Although this claim has received consideration, it is ultimately the applicant’s responsibility to understand their immigration status along with visa validity and conditions.”

19. The delegate made the following findings:

    ·“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. The applicant has been in Australia since 13 January 2011 and not departed (even temporarily).

    ·Departmental records confirm that the applicant has unsuccessfully applied for several permanent visas onshore and has presented their case or circumstances for review. The applicant has also not complied with visa conditions and has remained in Australia 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 an ongoing or permanent basis 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.”

20. In this review application whilst the Tribunal understands the applicant is seeking medical treatment in Australia (and provided detailed submissions as to the limitations as to funding by the Transport and Accident Commission (TAC) of Victoria) the applicant must satisfy the Tribunal  that he intends to comply with visa conditions, be a genuine temporary entrant and that he has an incentive to depart Australia if it were to be approved.

21. The applicant (via his MA) provided a lengthy submission to the Tribunal. It addressed the following:

    ·Background and evidence the applicant is seeking medical treatment in Australia.

    ·Summary analysis of the decision record inclusive e of finding that the applicant did not meet cl.602.215.

    ·Relevant legislation and instruments stating that given the Tribunal’s de-novo review function it was not limited  to the clause(s) relied upon by the delegate.

    ·The submission would address requirements not assessed by the delegate.

    ·Reasons the applicant genuinely intends to remain in Australia for a temporary period to undergo medical treatment and will comply with the visa conditions imposed.

    ·Substantial compliance, findings of the delegate concerning his immigration and visa history and periods of unlawful overstay, reliance on poor advice unfamiliarity with processes and limited English skills.

    ·Any other relevant matter, the development of symptoms  of anxiety and depression and involvement in a car accident on 25 February 2020 such that he “…was no longer fit to depart”, injuries to his spine (neck and back), injury to his right shoulder and right hand/thumb and psychological injuries”

    ·Treatment received includes osteopathy, physiotherapy with hands on massage, cortisone injections, suprascapular nerve block and pain medication with the treatment showing a lack of significant improvement.

    ·Further treatment including a multidisciplinary cognitive pain management program, psychology sessions and a scheduled appointment  on 10 March 2022 to discuss the prospects of shoulder surgery. Treatment period said to be 12 months.

    ·Treatment is paid for by the TAC, however the TAC is only liable to pay medical expense  that are received in Australia. As such the applicant’s temporary stay in Australia is required to maintain eligibility requirements for the purposes of instituting legal action, obtaining financial assistance and compensation under TAC.

    ·Other legal proceedings.

    ·Due to the combination of the treatment the Applicant is receiving and the circumstances surrounding COVID-19, return to Lebanon is not a viable option. If he were to be returned to Lebanon his treatment would not be paid for as TAC is not liable to pay any hospital, medical or like expenses incurred outside of Australia. He would unjustifiably need to assume his own costs and, given the current economic climate in Lebanon, the applicant will not have the financial means to cover these costs.

    ·GTE Criterion inclusive of family ties (3 siblings in Australia) plus a large family in Lebanon, death of his mother, intention to return to Lebanon at completion of treatment, personal circumstances (inability to work), no impediments  to his return and residence in Lebanon save for his inability to travel due to his injuries and need for medical treatment, adequate funds purpose and duration of the applicants’ stay (12 months treatment)

22. The applicant provided a copy of a statutory declaration that outlined his family background, residence in Australia since 2011, multiple applications for temporary and permanent visas to remain in Australia, alleged poor advice received from MA’s, the car accident, a TAC claim, a statement that declared “I understand that I have been residing in Australia for an extensive period of time and I submitted various unsuccessful visas. However during my stay in Australia, I was either self-represented or had poor prior legal representation. I had previously sought advice from 5-6 agents and I was not advised on my options adequately. I also overstayed my visa on a couple of occasions due to poor advice, unfamiliarity with visa processes and limited English skills…”, since his accident treatment from various medical professionals, ongoing pain, referral to a shoulder surgeon for further assessment, awaiting confirmation of appointments  under the Pain Management Program, Lebanon is not an option because of the coronavirus pandemic,  his symptoms of anxiety and depression are further exacerbated as a result of his physical condition, family in Australia, family in Lebanon, the passing of his mother, no assets in Australia and inability to work in Australia.

23. The applicant provided copies of documentation and correspondence from various treating medical professionals, the TAC and solicitors that detailed the progress of treatment arising out of his February accident and current legal claims and possible legal claims into the future.

24. The applicant provided a copy of a medical report from a Dr Gavin Weekes of Precision Health dated 1 February 2022. In this report Dr Weekes advised as follows:

    ·the applicant had a TAC accepted injury (confirmed by the applicant in evidence).

    ·Dr Weeks recommended the applicant participate in multidisciplinary cognitive program in the future and he be reviewed by a shoulder surgeon for his chronic right shoulder pain but “I would doubt that any further shoulder surgery will be required”.

    ·Dr Weeks advised it is my primary pain management recommendation that he participate in a multidisciplinary cognitive based pain management program . This program itself lasts approximately six weeks two days per week based pain management… he has been assessed for this program.

    ·The treating team has recommended that he do individualised psychology sessions before participating in the program, which we are trying to arrange for him at the moment. The overall period of treatment I would estimate at this point is 12 months.

25. In evidence the applicant advised the Tribunal as follows:

    ·He had been continuously resident in Australia since early 2011 as the holder of various temporary visas and had made multiple applications for a permanent visa  and had not departed Australia in that time.

    ·He advised the Tribunal he could not point to any errors or mistakes in the delegate’s summary of his visa/ immigration history.

    ·As to the reasons for his first overstay 20 December 2013 to 09 April 2014 he advised his English was not good, he did not have a lawyer, he made mistakes and he did not have access to an email at relevant times. 29 October 2016 and 20 April 2017 and 11 March 2020 and 22 April 2020.

    ·As to the reasons for his second overstay 29 October 2016 to 20 April 2017 he advised his lawyer failed to advise him.

    ·As to the third period of overstay 11 March 2020 to 22 April 2020 he did not know what had occurred, his lawyer did not advise him and he had not been aware of the unlawful overstay.

    ·He was involved in a car accident in February 2020. He was not hospitalised arising out of the accident.

    ·He lodged a TAC claim in late February or early March 2020. That claim and it s progress is being handled by his lawyers.

    ·His various siblings (4) resident in Lebanon had not visited him in Australia.

    ·His father had not visited him in Australia.

    ·His family in Lebanon were wealthy with their own home, land and shops.

    ·Since February 2020 and during calendar year 2020 he received intermittent treatment (inclusive of two injections, physical therapy and a visit to a psychologist and a psychiatrist).

    ·Three siblings lived in Australia. Two sisters were married and had their own families. He had lived with his brother for the last two years. His brother provides for his upkeep (accommodation, food and finances). His brother was no longer married. He didn’t think his brother was currently in a permanent relationship.

    ·He is fully vaccinated.

    ·His treating medical professional has outlined a course of treatment that will take up to 12 months involving psychological counselling as a prelude to his participation in a  primary pain management plan as part of a multidisciplinary cognitive based pain management program. It appears to the Tribunal that this course of psychological counselling could well extend beyond a 12 month period. Although his treating medical professional has stated it is unlikely he will need further shoulder surgery he will see another shoulder specialist.

26. The Tribunal has considered all the above information and material to be found on the Departmental and Tribunal files. The Tribunal has reviewed the applicant’s lengthy submission and many attachments. The Tribunal paid close attention to the evidence of the applicant and examined him at length.

27. The applicant seeks the Tribunal grant a medical visa so that he can undergo psychological counselling as a prelude to participation in a pain management program plus further review of the utility of shoulder surgery. The cost of these processes to be borne by the TAC whilst the treatment is pursued in Australia.

28. The applicant has lived continuously in Australia all of his adult life. He has held numerous temporary visas and applied for permanent visas. He has availed himself of his legal rights through numerous review application proceedings all of which have been unsuccessful. He had engaged with and been exposed to numerous migration agents and solicitors during his lengthy period of residence in Australia. He is generally dismissive of their work on his behalf asserting continuing and serial incompetence on the part of those firms and individuals. His repeated explanation as to continuing periods of unlawful overstay was failure to advise, failure to consult, failure to inform on the part of others, lack of familiarity with the migration system, lack of access to email and poor command of the English language. The Tribunal does not reject these explanations out of hand. Solicitors and MA’s can make mistakes. The applicant did not provide written particulars of these alleged mistakes/errors.

1. It is unlikely that all solicitors and MA’s (at least 5-6) would serially make the same or similar repeated errors, particularly errors of such significance and with such potentially adverse consequences. If so one would expect legal action for negligence. There was no evidence of such action. More importantly the responsibility for being aware of visa conditions, of being aware of visa expiry dates of maintaining only a lawful presence in this country cannot be delegated to others. It fits squarely on the shoulders of a visa-holder. The Tribunal is aware that the Department maintains a website that is easily accessible and which contains much valuable immigration information in multiple languages. The Tribunal is of the view the applicant has had many opportunities to access current and correct immigration advice by relatively easy means.

2. The applicant’s visa/migrant history can only be described as poor. Its salient features are repeated periods of overstay, repeated applications for reviews, repeated failures in these review processes and multiple applications for continuing residency rights. The once constant in the applicant’s adult life in Australia is attempts to remain in Australia. The applicant’s visa/migrant history is a testament to persistence. It is a poor history and the Tribunal can only give minimal weight to the applicant’s various explanations of periods of unlawful overstay. These periods of unlawful overstay are not isolated nor rare. They occur on a continuing basis separated only by years. They appear to the Tribunal to be deliberate, not accidental. The Tribunal is not able to give any weight to the explanations provided by the applicant for these periods of unlawful overstay. The Tribunal gives serious adverse weight to the applicant’s visa/migrant history.

3. The Tribunal accepts the applicant was involved in an accident, has been receiving medical treatment since 2020, is considering further professional medical treatment during the remainder of 2022 (see medical report of Dr Weekes) and is currently in receipt of legal advice and will receive further legal advice in the future as to impairment benefits, a serious injury certificate and a possible common law claim dependant on medico/legal advice.  The applicant may well have an exhaustive set of legal rights. Future claims are at best speculative. Future costs are also speculative. The applicant has lived in Australia without cost due to the generosity and graciousness of his brother. The applicant described his family in Lebanon as wealthy. The Tribunal accepts that Covid-19 is a fact of life. It is certainly present and spreading in Australia. Similarly in Lebanon. The Tribunal accepts the applicant might be responsible for private medical costs in his home country. The Tribunal accepts the TAC in Victoria is likely to bear much of the associated medical and legal costs in Australia that arise out of the car accident of February 2020.This is a relevant matter and the Tribunal has given it much consideration. However the Tribunal is of the view it is highly unlikely that the applicant’s family in Lebanon (a family of wealth) would not now extend the hand of assistance and love to a son returning home after many years (I am now looking forward to reunite with my father… and make up for lost time whilst we did not keep in touch. Family is the most important in life and we have to take advantage of being close to our loved ones before it is too late”).

4. The applicant comes from a family of wealth in Lebanon. He has been resident in Australia all of his adult life. He has not returned home to see family. His family have not visited him in Australia. In difficult circumstances in a foreign land without work or study rights the applicant has not succumbed to any temptation to return home. He has resolutely maintained residence in Australia. The Tribunal accepts there may well have been family disagreements, there may well have been be family disputation as to life choices made by the applicant in Australia and there may well have been minimal or no contact for over a decade.  These matters are relevant considerations.  Indeed a protracted period of unemployment  and hence no income and total reliance on sibling generosity has not amounted to sufficient incentive to return to the home country.  The Tribunal is of the view the incentive to return home has been and is now minimal.

5. The Tribunal is of the view the applicant has been seeking an immigration outcome for many years. The Tribunal is of the view the applicant’s many applications for both temporary and permanent visas are part of an ongoing plan to achieve permanent residency in Australia. The Tribunal Is not persuaded it is the applicant’s intention to genuinely to stay temporarily in Australia for the purpose of undergoing medical treatment. The Tribunal is of the view that the applicant is seeking a migration outcome through his now third application for a medical visa.

6. The Tribunal finds the applicant’s adverse 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 and that he does not genuinely intend to remain in Australia on a temporary basis.

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

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

9. 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

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

    Mark Bishop
    Member