Amrin (Migration)

Amrin (Migration) [2019] AATA 1020 (8 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohd amin Amrin
CASE NUMBER:  1711306
DIBP REFERENCE(S):  BCC2017/1538384
MEMBER:Christine Kannis
DATE:8 February 2019
PLACE OF DECISION:  Perth
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(1) of Schedule 2 to the Regulations

Statement made on 08 February 2019 at 4:33pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Visa) – genuine intention to leave Australia when the treatment is completed – complied with conditions of his last substantive visa – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.212, 602.215

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 May 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 27 April 2017. 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 (the Regulations). Relevantly to this case they include cl. 602.215.
The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met the requirements of cl.602.215 that he genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The delegate noted the applicant had not demonstrated an intention to depart Australia.
The applicant appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s Personal Injuries solicitor, Mr Murray Posa. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
Following the hearing, on 29 January 2019, Mr Posa provided a written submission and additional medical evidence.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted
Background
The applicant is a 28 year old Malaysian national. He arrived in Australia on 1 August 2016 and on 4 August 2016 he was injured in a motor vehicle accident.
On 4 August 2016 the applicant was admitted to Royal Perth Hospital (RPH) where he stayed until 14 September 2016 when he was transferred to Fiona Stanley Hospital (FSH). According to the Discharge Summary from FSH the applicant’s principal diagnosis on admission was Rehabilitation after multi-trauma. He was discharged from FSH on 10 November 2016.
The applicant was again hospitalized for 5 days from 9 January 2017 and was discharged from RPH on 13 January 2017. The Discharge Summary indicated his principal diagnosis was a complex urethral injury and noted a complication of a urinary tract infection.
The information before the Tribunal included:
·A letter dated 14 September 2016 from the Insurance Commission of Western Australia (ICWA) advising that no formal admission of liability had been made at that time and that the claim was proceeding on a “without prejudice and without admission of liability” basis and that ICWA would pay for all reasonable crash related expenses.
·Reports dated 6 September 2016 and 9 October 2016 from Clinical Professor Rene Zellweger which described the applicant’s orthopaedic injuries and surgery and said further treatment would be “according to the healing progress”.
·A report dated 11 January 2017 from RPH Urology Intern Dr Kaiyi Phua which advised that the applicant had suffered a traumatic bladder and urethral rupture which had been repaired surgically. Dr Phua said the applicant continued to require urology input and a suprapubic catheter was inserted on 9 January 2017. He said this would be followed by a flexible cystoscopy after 6 to 8 weeks. Dr Phua said the applicant might require further surgical management based on the cystoscopic results.
·A letter from General Practitioner Dr Laith Al-Ani dated 11 February 2017. Dr Al-Ani said the applicant was waiting for a urology procedure in 6 to 8 weeks. Dr Al-Ani said the applicant was also still under Orthopaedics Trauma follow up at RPH and he had an appointment on 28 April 2017. Dr Al-Ani said the applicant was still under dietician care, physiotherapy and GP follow up.
·An Outpatient Case Notes form dated 23 February 2017 signed by Dr Sunny Lee, Consultant Urologist. Dr Lee said the applicant had a membranes urethral stricture and was waitlisted for surgical repair which he anticipated would take place in 6 to 8 weeks. Dr Lee said the applicant would need a three month recovery period.
·A note dated 4 April 2017 from Ms Karen Allingham of CNC Continence/Urology RPH stating the applicant was waitlisted for a surgical procedure to repair a urethral stricture.
·Appointment notices for the applicant to attend RPH (Continence Management Service and Orthopaedic Trauma) on 4 April 2017, 28 April 2017, 3 May 2017 and 17 May 2017.
·A report from Dr Al-Ani dated 21 May 2017 in which he said the applicant was on the waiting list for a urethral repair procedure.
·A handwritten letter dated 7 December 2018 from Dr Marc Williams. Dr Williams said the applicant attended RPH for ongoing care following his previous urethral reconstruction and said his current issues were erectile dysfunction due to the previous trauma and urine leakage from a previous suprapubic catheter. Regarding the former Dr Williams said the applicant should arrange an appointment with the Western Australian Sexual Health Clinic and in relation to the leakage said it was hoped it would close by itself in the next few months. Dr Williams said he had shown the applicant how to apply a wound drainage bag to stop urine leakage on his clothes and said he would be reviewed in three months.
·An appointment notice to attend RPH (General Urology) on 14 February 2019.
The medical evidence provided following the hearing included a report dated 29 November 2018 from Dr Williams.
Does the applicant genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted?
Clause 602.215 (1), as extracted in the attachment to this decision, 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).
The applicant does not claim to be medically unfit to depart Australia. He does not otherwise meet cl.602.212(6).
The delegate’s decision, a copy of which was filed with the Tribunal with the application for review, revealed the applicant’s immigration history. He arrived in Australia on 1 August 2016 on a Subclass 601 visa. He was granted his first Medical Treatment Subclass 602 visa on 3 November 2016 and on 27 April 2017 he lodged an application for a second Medical Treatment Subclass 602 visa.
There was nothing before the Tribunal to indicate that the applicant has not complied substantially with the conditions of his last substantive visa and the Tribunal so finds.
Further, given his previous compliance with the conditions of a Subclass 602 visa and his physical condition, the Tribunal is also satisfied he will comply with conditions 8101 (must not engage in work) and 8201 (must not engage in more than 3 months study or training) to which the Subclass 602 visa would be subject.
The Tribunal has considered all other relevant matters in relation to whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Departmental guidelines (PAM3) set out various matters that may be considered in assessing an applicant’s genuine intention to stay temporarily in Australia. The Tribunal may have regard to Departmental guidelines; however, they are not binding upon the Tribunal. Matters referred to in the Departmental guidelines include:
·personal circumstances that would encourage the applicant to return to their home country at the end of the proposed visit
·personal circumstances or general conditions in the applicant’s home country that might encourage them to remain in Australia
·the applicant’s credibility in terms of character and conduct
·whether the purpose and proposed duration of the applicant’s visit and their proposed activities in Australia are reasonable and consistent
·the applicant’s immigration and travel history
·information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant’s home country
In the Application for a Medical Treatment visa filed on 28 April 2017, the applicant stated he wished to remain in Australia from 1 May 2017 until “unknown” for medical treatment. In response to Question 18, “Briefly describe the medical treatment in Australia you have arranged and estimated cost” the applicant said he was on a waiting list for an operation and he referred to a letter from Dr Lee and said he needed treatment based on following his doctor’s suggestion. The Outpatient Case Notes form dated 23 February 2017 signed by Dr Lee was provided.
The medical evidence before the Tribunal indicates that the applicant has since undergone the proposed surgery in April 2018.
Mr Posa told the Tribunal that the applicant has an ongoing bladder and urethra problem because he is still experiencing leakage. Mr Posa said he understands that further surgery may be required to rectify the problem. The medical evidence provided following the hearing included reports from Dr Williams and Dr Lee, both of who indicated that the applicant may require further surgery due to the leakage or other complications.
The applicant told the Tribunal that his wound has not yet closed and he still uses a drainage bag. The Tribunal noted that the applicant has an appointment with Dr Williams on 14 February 2019. The applicant said Dr Williams has indicated that he will require further surgery if the wound is still leaking.
The Tribunal asked the applicant whether he had made an appointment with the Western Australian Sexual Health Clinic as suggested by Dr Williams. He said he had not done so as yet because he wanted to rectify his bladder and urethra problem before addressing his erectile dysfunction. Following the hearing Mr Posa advised that the applicant had made an appointment to see a specialist on 7 February 2019. An email confirming the applicant’s appointment with Dr David Millar of Perth Men’s Health was provided.
Noting that no evidence had been provided that he must remain in Australia for treatment, or that the medical treatment is not available in Malaysia, the Tribunal asked the applicant the reason he has not returned home. He said he wanted his medical treatment in Australia because he had been injured in Australia. He said Malaysia does not have a medical specialist who can provide the treatment he requires. The medical evidence provided following the hearing included reports dated 25 May 2017 and 14 June 2018 from Dr Lee in which he advised that there is no subspecialist urologist in Malaysia who is capable of looking after the applicant’s type of complex urethroplasty.
The applicant also said he has not returned to Malaysia because ICWA will not pay for any treatment provided in Malaysia. In Mr Posa’s written submission he said that if the applicant requires further surgery he understands that in Malaysia that type of surgery would need to be paid, whereas if the applicant is in Australia ICWA will pay for any further surgery. The Tribunal understands that Mr Posa was saying that the applicant would have to meet the costs of any further surgery if he was in Malaysia.
The applicant told the Tribunal he came to Australia for a holiday in 2016. He did not intend to stay in Australia however he was involved in a motor veichle accident shortly after his arrival. Since the accident he has been financially supported by his wife and has also received loss of income advance payments from ICWA. His wife is in full-time employment and is currently the holder of a Bridging A visa. The applicant said his previous employer terminated his employment because he has not returned to Malaysia.
The applicant said his parents and 14 siblings reside in Malaysia.
The Tribunal noted that in his visa application the applicant stated he wanted to obtain medical treatment from 1 May 2017 until “unknown”. At the hearing the Tribunal raised with the applicant its concerns that he did not satisfy the requirements for this visa and pointed out that the visa is a temporary visa and not intended to allow the holder to remain in Australia indefinitely. The Tribunal asked the applicant whether it is his intention to remain in Australia. He said he would like to stay in Australia to complete his medical treatment and expressed his concerns about the lack of a suitably qualified specialist in Malaysia. The medical evidence does not provide the Tribunal with any definitive information as to whether the applicant will require any further surgery or whether his medical treatment is likely to consist of review only.
The Tribunal has considered the totality of the evidence and information before it relevant to the issue of the genuineness of the applicant’s intentions. The Tribunal accepts the applicant suffers from an ongoing bladder and urethra leakage problem and that if he requires further surgery it is preferable that he is in Australia because of the availability of a suitably qualified specialist and cost issues. These are the reasons the applicant said he wants to remain in Australia to complete his medical treatment.
The Tribunal accepts that the applicant has a pending compensation claim in relation to the injuries he sustained in the motor vehicle accident.
The Tribunal accepts the oral evidence that the applicant is currently supported financially by his wife. His wife is the holder of a temporary visa only. There is no evidence that the applicant has further personal ties to Australia that would be greater than the personal ties he has to Malaysia. In particular, his parents and siblings reside in Malaysia so he has significant personal ties to Malaysia also. The Tribunal considers these to be personal circumstances that would encourage the applicant to return to Malaysia at the end of his medical treatment.
It is of some concern that still, more than 21 months after the application for the Medical Treatment visa was made, the applicant seeks the visa without being able to state clearly the period for which the visa is sought. Given the difficulty the health care practitioners have had in making predictions, the Tribunal does not consider it significant that the applicant stated in the visa application that he sought the visa until an “unknown” date. For reasons essentially given by Dr Lee and Dr Williams, the medical evidence available does not definitely state for how long treatment and/or review will continue. Nevertheless, the Tribunal is satisfied on the basis of Dr Lee’s and Dr Williams’ reports that treatment is continuing for the time being and that, subject to the applicant’s response to treatment, he may require further surgery in the foreseeable future.
Having regard to all the above matters the Tribunal is satisfied that the applicant has a genuine intention to leave Australia when the treatment provided for his urine leakage and erectile dysfunction is completed.
On the above basis the Tribunal finds the applicant has a genuine intention to only stay temporarily in Australia for the visa purpose. Accordingly, the Tribunal finds cl.602.215(1) is met.
The appropriate course is therefore to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.
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(1) of Schedule 2 to the Regulations
Christine Kannis
Member

ATTACHMENT
Migration Regulations 1994
Schedule 2
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.
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).

[2019] AATA 1020

8 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction