Amirghan (Migration)

[2021] AATA 4624

Amirghan (Migration) [2021] AATA 4624 (19 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jaklin Amirghan

CASE NUMBER:  1936001

HOME AFFAIRS REFERENCE(S):          BCC2019/5621759

MEMBER:Mark Bishop

DATE:19 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.215 of Schedule 2 to the Regulations; and

Statement made on 19 November 2021 at 2:05pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – substantial compliance with visa conditions – period of unlawful residence – requirement to be gravely ill or receiving intensive or critical care – compassionate or compelling circumstances – non-urgent elective surgery suspended under COVID19 pandemic restrictions – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215; rr 2.08, 4.12

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 5 December 2019 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 7 November 2019. 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 because the applicant failed to satisfy the criteria set out in the relevant Migration Regulations.

4. Case Note 1 sets out the following:

   ·A secondary party, Aram Amirghan, has been included in review application as a secondary review applicant. However, they appear to be part of a separate decision that is not combinable with this review application. It appears that the timeframe for amendments has passed.

5. On 7 November 2019 the applicant lodged an application for a Medical Treatment (Visitor) (class UB) Medical Treatment (subclass 602) Visa. On 5 December 2019 the delegate refused to grant the applicant  a visa pursuant to cl.602.215 because the first review applicant did not satisfy the relevant criteria.

6. On 7 November 2019 a Mr Aram Amirghan (husband of the applicant) lodged an application for a Medical Treatment (Visitor) (class UB) Medical Treatment (Support Person) (subclass 602) visa. On 5 December 2019 the delegate refused to grant Mr Aram Amirghan a visa pursuant to cl.600.212 because Mr Aram Amirghan did not satisfy the relevant criteria.

7. The applicant appeared before the Tribunal on 11 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the Migration Agent and Mr Aram Amirghan the husband of the applicant.

8. In the hearing the Tribunal foreshadowed to the applicant issues concerning jurisdiction re Mr Aram Amirghan (husband of the applicant). At the conclusion of the hearing the Tribunal requested the applicant provide written submissions as to jurisdiction. On 19 November 2021 the applicant advised the Tribunal in writing “We unfortunately do not have instructions to address jurisdiction and therefore cannot assist the Tribunal in relation to this aspect.”

9. Accordingly there were separate applications for visas by the two applicants and separate decisions given down by the Department on the same date.

10. The applicants lodged a combined application for review. Combined applications for review are only permitted under the regulations in two circumstances as follows:

    ·Only If visa applications were combined in Australia under:

    or.2.08 (child born before primary decision); or

    oSch 1 - application by person included in the passport of another applicant may be made at the same time and place (Item 1214A(3)(d), r.2.08, r.4.12(2)).

11. The applications for review do not fit within the criteria set out in paragraph 10 above.

12. Accordingly the Tribunal does not have jurisdiction in respect of the application for review lodged by second review applicant Mr Aram Amirghan. 

13. The Tribunal does not have jurisdiction with respect to Mr Aram Amirghan. 

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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

16. 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.

17. Cluse 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.

18. 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.

19. 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

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

21. 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”

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

23. Accordingly the Tribunal turns to cl.602.215.

24. The delegate recorded that Departmental records showed the following:

    ·On 23 June 2016, the applicant arrived in Australia as the holder of a Visitor (subclass 601) visa and has not departed.

    ·On 13 September 2016, the applicant lodged a Visitor (subclass 600) visa. This was granted on 14 September 2016.

    ·On 14 June 2017, the applicant lodged an application for Visitor (subclass 6022) which was refused on 16 June 2017. On 06 July 2017, the applicant sought a review of the decision at Administrative Appeals Tribunal (AAT). This was affirmed by the AAT on 28 February 2018.

    ·On 15 May 2018, the applicant applied for Ministerial Intervention under Section 351, this was determined to not be referred on 04 June 2018.

    ·On 31 July 2018, the applicant applied for Ministerial Intervention under Section 351, this was determined to not to be considered on 23 September 2019.

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

    ·During their time in Australia, the applicant has been an unlawful non-citizen for 54 days.

25. On 07 November 2019, the applicant lodged an application for a Medical Treatment visa. It is stated that they would like to remain in Australia until 10 June 2020 to seek medical treatment for Bilateral Knee Pain. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.

26. The delegate made the following findings:

    ·“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 temporary visa onshore and have taken every opportunity to present their case or circumstances for review. I find that their 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.”

27. In assessing whether the applicant satisfies clause 602.215, the Tribunal considered the following:

    ·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject

    ·whether the applicant intends to comply with the conditions to which the visa would be subject

    ·whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia

    ·the personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay

    ·the personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption)

    ·conditions that might encourage the applicant to remain in Australia

    ·the presence of immediate family members in their home country

28. The applicant provided the following documentation to the Tribunal:

    ·Statutory Declaration that he had problems with his knees since 2007 and various treatments since that date inclusive of surgery. He takes pain killers for his knees. He needs further surgery.

    ·Letter of advice from a Dr. Hagop Kiyork dated 3 March 2020 that advises the applicant suffers from disabling osteoarthritis of her right knee. Ultimately, she would benefit from a right total knee replacement however is in a difficult situation at present, given she is a US citizen. At some point, if she becomes eligible to have a right total knee replacement in Australia I would be happy to see her again.

    ·Letter from a Dr Andrew Tan dated 10 November 2021 advising the applicant has advanced osteoarthritis in her right knee’s medical compartment. She has been referred to Dr. Charlie Lin for an opinion. If he agrees to surgery it would be preferable to have it done where she has the support of her grand-daughter and son. She has a daughter who resides in the USA.

    ·Submission that outlined the following:

    oBackground to the review application.

    oDelegate finding that the applicant did not satisfy cl.602.215 (the GTE criteria).

    oThe applicant is a US national and 79 years of age. She has held a succession of temporary visas (for further detail see above at paragraph 14 for visa and immigration history).

    oExtract from cl.602.212.

    oThe applicant satisfies cl.602.215 as she has substantially complied with visa conditions (excluding a 54 day unlawful overstay). The applicant asserted (correctly) it was her right to challenge departmental decisions. The applicant has sought appropriate legal advice. The conclusion of the delegate that the applicant intended to remain in Australia permanently was in error. The delegate incorrectly applied and interpreted the law. There is no requirement, nor policy that required the applicant to be gravely ill or receiving intensive or critical care. It is also not a requirement that they must remain in Australia for ongoing consultation, which is the basis on which to renew an existing Medical Treatment Visa. In the current case.

29. In response to questions on 11 November 2021 the applicant provided detailed evidence to the Tribunal. At the conclusion of the hearing the Tribunal requested the applicant proved written submissions that addressed cl.600.215, cl.600.212, compassionate or compelling circumstances and jurisdiction in respect of her husband Mr Aram Amirghan. On 19 November 2021 the applicant complied with this request and provided comprehensive written submissions. The Tribunal gives this submission weight.

30. This submission addressed post hearing submissions that addressed cl.602.215, background and current circumstances of the applicant, the applicant’s medical history, the significance of non-urgent elective surgery suspended under COVID Pandemic since March 2020 (inclusive of category 3 non-elective surgery), relevant GTE considerations (as set out in paragraph 27 above), compelling personal reasons or exceptional circumstances, estimated time frame of Mrs Amirghan’s treatment plan for her knee including the estimated time needed for Mrs Amirghan to recover and rehabilitate fully post-surgery plus appropriate supporting documentation.

31. The Tribunal has reviewed all the above material inclusive of pre-hearing and post-hearing written submissions.

32. The Tribunal finds the applicant does satisfy the requirements set out in cl.602.215 (1) in Schedule 2 to the Migration Regulations.

33. Given the above findings, cl 602.215 is met.

    Concluding paragraphs

34. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

    decision

35. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

    ·cl 602.215 of Schedule 2 to the Regulations.

    Mark Bishop
    Member