Azam (Migration)

[2019] AATA 3140

Azam (Migration) [2019] AATA 3140 (15 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Farhan Azam

CASE NUMBER:  1729298

DIBP REFERENCE(S):  BCC2017/3786612

MEMBER:Mary Urquhart

DATE:15 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 March 2019 at 11:22am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – not a genuine temporary entrant – unfit to depart Australia due to back pain – credibility issues – multiple visa applications – no new medical evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(6), 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 2 November 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 October 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).

3. The delegate refused to grant the applicant the visa because the applicant did not meet the criteria in cl.602.215 in Schedule 2 to the Migration Regulations and accordingly did not satisfy the criteria for the grant of a Medical Treatment (Visitor) visa.

4. The applicant appeared before the Tribunal on 13 March 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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 (cl.602.215) having regard to the considerations set out in cl.602.215.

8. At the outset the Tribunal records that during the hearing it found the applicant to be vague, evasive and regularly not able or willing to give specific answers or information to the Tribunal.  This included providing sufficient detail as to when he worked and who employed him, how often he worked and how much he earned, when it was he hurt his back, his medical treatment and his personal life.  This evasiveness and generality of responses given to questions of specific nature leads the Tribunal to find the applicant to be an unreliable witness.

9. The applicant is a citizen of Pakistan. He  gave evidence that he is  29 years old. He said he is married with a wife and three children who live with his family in Pakistan. He said he is not supporting them. He first came to Australia in 2010. He gave his current address as [deleted]. He said he had lived at this address for some six months. At the request of the Tribunal he produced a driver’s licence which showed two addresses but not his current address. He said he had He said he lives with cousins who support him.

10. The Tribunal notes in the application for the visa, the  Form 1507, dated 12 October 2017, includes information from  a GP, Dr Pereira which states the applicant's medical condition was back pain (at the time of consultation) and that the treatment was rest and medication.

11. Questioned about his treatment the applicant said he takes medication. Asked what  the medication  is he replied vaguely that he was “not sure”. Asked if it would be available in Pakistan the applicant replied somewhat incongruously that it would be.

    Is the applicant unfit to depart Australia?

12. 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.

13. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

14. The applicant claimed at the hearing he is unfit to depart Australia on grounds that he has back pain.

15. At the time he lodged his application he presented a medical certificate  dated 12 October 2017, in which  Dr Pereira indicated the applicant was unfit to travel between “12/10/2017 and 26/10/2017”. Asked why he is now unfit to depart, the applicant replied vaguely that he has back pain. He gave sworn evidence that he last saw Dr Periera three weeks ago but had no evidence to support the claimed visit. Asked when next he would see Dr Pereira he replied he had not made an appointment. Asked at the hearing what if any new or further medical evidence he had the applicant said he did not have anything at the moment.

16. The Tribunal asked the applicant if his condition was critical or if it had deteriorated. He responded saying he “just has pain”.

17. The Tribunal finds the applicant has not provided any new medical evidence and in particular any evidence that his condition has deteriorated significantly since 2017 to the point that he is at present unfit to travel or that he is incapacitated^- or incapable of departing Australia at this time. The Tribunal notes that the applicant has not provided any evidence from a Medical Officer of the Commonwealth that he is unfit to travel. The Tribunal is not satisfied that the applicant is unfit to depart Australia.

18. Given the above findings, the requirements in cl.602.212(6) are not met.

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

19. 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).

20. In considering whether the applicant intends to stay temporarily and whether he would comply with any future visa conditions the Tribunal questioned him about his past immigration history.

21. The applicant confirmed that he arrived in Australia in September 2010 on a Student visa and enrolled in an English language course. He said he studied English for 4 months. It was his evidence that he then sought a number of Student visas over time as he studied first Construction, for a year in 2011 and then Certificate iv Construction at Holmesglen for a further year. He said he then switched to IT studies doing Certificate III and IV in 2013. The applicant claims he then did “On line” studies for two years then enrolled in a Commercial Cooking Course for two years completing the course in 2017.

22. The applicant’s history is that:

    ·He arrived on a Student visa.

    ·On 05/03/2012, the applicant was granted a further Student visa subclass 572 on shore, for stay until 06/03/2013.

    ·On 04/04/2013, the applicant was granted a third Student visa subclass 572, for stay until 04/03/2015.

    ·On 12/02/2015, the applicant lodged an application onshore for a further Student visa subclass 572.

    ·On 15/05/2015, the application was refused, and on 02/09/2016, the Administrative Appeals Tribunal affirmed the decision.

    ·On 23/09/2016, the applicant appealed the decision refusing the visa to the Federal Court.

    ·On 20/02/2017, the applicant lodged an application for Temporary Work (Skilled) visa subclass 457. (The applicant’s evidence is that this visa was refused as he was required to make the application offshore).

    ·On 18/09/2017, the Judicial Review Result of the applicant's appeal to the Federal Court in relation to the Student visa refusal was "Minister Win".

23. The Tribunal notes in particular and gives weight to the evidence that the applicant lodged an application for a work visa subclass 457 in 2017. The Tribunal finds this evidence gives credence to the applicant's intention to continue to work and live in Australia on a long-term basis. The applicant gave evidence that the skilled work visa was refused, as to be valid, it had to be made offshore. The applicant gave evidence that he lodged his Medical Treatment visa after he had lodged his Temporary Work (Skilled) visa.

24. The applicant made the Medical Treatment visa application on the basis of having back pain. Asked when it was that he hurt his back the applicant could was unable to say. However he said it was due to pulling a heavy bag whilst driving a taxi.

25. Asked about employment in Australia, the applicant said he had only worked part time. He was unable to say who employed him driving taxis other than that it was “Mahmood”. Asked if he had any documentation regarding his employment as a taxi driver, he replied that he did not.

26. The applicant gave evidence that after he finished his studies he worked at Handi Kitchen in Dandenong. He said he was employed there by Mansoon Khalid. Asked about his work hours at Handi he replied vaguely that he only worked on weekends earning $300 a time. Asked about expenses and how he has supported himself he replied he only paid his cousins rent “sometimes” he said. He said his cousins help him financially. He gave evidence that he does not send money home to his wife and children. The applicant gave evidence he was last at home in Pakistan in 2017.

27. The applicant has not provided any evidence to substantiate his claims to have only worked part time or in compliance with visa conditions. It was his evidence that he continued to work on his student visa after he had ceased his studies. Asked why he does not return home he replied it was because of back pain. The Tribunal finds his response vague and lacking in detail.

28. The applicant has not provided any new evidence to substantiate his need for Medical treatment. Given his history and the lack of evidence in support of his application the Tribunal is unable to be satisfied that the applicant would comply with the conditions of a Medical Treatment visa if granted in particular that he would stay temporarily for the purpose of the visa.

29. The applicant has not held a substantive visa since the cessation of his Student visa on 4 March 2015.The Tribunal notes the delegate referred to the applicant having, at the time of the delegate’s decision, spent some 2371 days in Australia since 2010 and only 208 days offshore.

30. Department records confirm that since his arrival in 2010 the applicant has made repeated applications to extend his stay to study a variety of unrelated courses and work in Australia. On the basis of the evidence before it the Tribunal  finds the applicant’s immigration history when taken together with his application for a Medical Treatment visa and the lack of supporting medical evidence reveals a pattern of prolonging his stay in Australia

31. The Tribunal finds the evidence indicative of an intention by the applicant to remain in Australia where he has effectively established a home since 2010. The Tribunal finds no exceptional circumstances and further finds the applicant has no intention of staying in Australia on a temporary basis. The Tribunal formed the view that the applicant is using the Medical Treatment visa application as a pathway to seek review and lodge appeals, and thereby further prolong his stay in Australia.

32. Based on the findings above, the applicant does not meet the requirements for the grant of the visa.

33. The decision under review must be affirmed.

    DECISION

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

    Mary Urquhart
    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).