Diab Sleiman (Migration)

[2018] AATA 5832

Diab Sleiman (Migration) [2018] AATA 5832 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wahib Diab Sleiman

CASE NUMBER:  1731627

DIBP REFERENCE(S):  BCC2017/4533102

MEMBER:Linda Holub

DATE:26 November 2018

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 26 November 2018 at 4:55pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary stay – treatment required – nasal obstruction / sinusitis – post-operation care – potential of future treatment – no medical treatment has been arranged yet – migration history – unlawfully remained in Australia after bridging visa ceased – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration on 8 December 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 28 November 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 taking into account all the applicant’s circumstances, the delegate found that he is attempting to obtain a further Medical Treatment visa to remain in Australia to work, maintain ongoing residence and to access services in Australia.

4. The applicant appeared before the Tribunal on 26 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

Is the applicant unfit to depart Australia?

1. 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.

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

3. The records of the Department indicate that the applicant was in Australia at the time of application on 8 September 2017 and he confirmed this at hearing.  Accordingly, the Tribunal finds that he satisfies the requirements of cl.602.212(6)(a).  The evidence before the Tribunal indicates that he was born in August 1984 and therefore he has not turned 50 years of age.  The applicant confirmed his date of birth and that he is 34 years of age.  Accordingly, the Tribunal finds that as he has not turned 50 years of age he does not satisfy the requirements of cl.602.212(6)(b).  As he not satisfy the requirements of cl.602.212(6)(b), he is unable to meet the requirements of cl.602.212(6) in its entirety.

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

11) The applicant is not medically unfit to depart Australia and therefore the requirement at Clause 602.215 applies.

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

12) 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).

13) The applicant is a 34 year old Lebanese national.  At the time of application he sought the visa for the period 22 November 2017 until 22 November 2019.  He did not indicate what treatment he had arranged in Australia on the application form.  On the Form 1507 of the application, the medical practitioner wrote that the medical condition requiring treatment is nasal obstruction / sinusitis and the treatment information provided was that the applicant had surgery in February 2016 and had on-going post-op care.

14) At hearing the Tribunal asked the applicant to explain what treatment he had required post-operatively.  The applicant explained that because of the obstruction in his nasal passage the surgery required cartilage to be taken from his ribs.  After surgery he still had problems on his left nostril and was advised by the surgeon in around August 2016 that more time was needed for things to settle down.  His breathing problems continued and earlier this year the surgeon agreed that if necessary he would re-do the operation.  The applicant was advised by his surgeon that there are some disadvantages in re-doing the surgery but there are also issues for the applicant to continue as things are with the obstruction. The applicant stated there had been no improvement although he was using the medication that clears the airways as directed and tries to keep the area clean.  The applicant stated he last saw his surgeon about 7 months ago.  When asked if the surgery had been arranged, he said it had not. 

15) The applicant stated that he can undertake the surgery in his country however, because it is repeated surgery to correct the previous surgery it is more complex than usual.  His surgeon will consider more than one option from which to take cartilage.  A new doctor in Lebanon will not be familiar with this history.

16) The Tribunal put to the applicant that it appears from his evidence he has not arranged the required medical treatment for his condition and what he was saying is that there is the potential of future treatment.  The applicant responded that the medication has not helped and he intends to have surgery.  The Tribunal stated that it accepts that he intends to have the surgery at some point but to date, the medical treatment has not arranged.  The applicant responded that he has talked with surgeon but they have not set a time yet.  He said that another concern he has is that when they take the cartilage from his ribs he will not be move his arm.  He acknowledged that this sounded strange but he said that’s what happened last time.

17) The Department’s Decision Record outlines the applicant’s migration history as follows: He first came to Australia as the holder of a Student visa subclass 572 on 1 July 2010 and has remained onshore since that time.  At the end of 2012 he had a further visa of the same type which was valid until 27 November 2014.  The applicant was included on his father’s Protection visa application.  That application was refused in October 2013 and was later affirmed by the then Refugee Review Tribunal.  The Tribunal’s decision was appealed to the Federal Court and in November 2016, the court found in the Minister’s favour.  Appeals were lodged in the Full Federal Court and subsequently the High Court and on each occasion the courts have found in the Minister’s favour.  On 14 July 2017 the applicant’s Bridging visa which was granted in association with the Protection visa application ceased.  The applicant remained unlawfully in Australia until the end of November 2017 when he lodged this application for a Medical Treatment visa.

18) The applicant agreed with that the outline of his migration history in the Decision Record accorded with the facts.  He explained that his short period of being unlawful after the legal processes in respect of the Protection visa application had concluded as a result of him not receiving an email him from the Department to alert as he had on previous occasions.

19) The applicant stated that his father and his aunt and some cousins live in Australia, while his mother, two brothers and two sisters live Lebanon.  The applicant acknowledged he could live with his family if he were to return to Lebanon.  Prior to coming to Australia he had studied medical science and briefly worked in a company producing SIM and security cards as a quality control inspector.  The applicant is not married and stated that he has no girlfriend or fiancé in Australia. 

20) When asked if there is any reason he cannot return to Lebanon, the applicant stated that the situation in Lebanon is not good.  When asked how this may impact on him, he stated that when he lodged his Protection visa application he had been at risk.  The Tribunal put it to him that the protection claims has been assessed by the Department and refused and the decision had been affirmed by the Tribunal.  He agreed this was the case.  When asked whether he would still be at risk, he stated that he is not sure if he may still be at risk.  The Tribunal asked him if he had any evidence about any potential risk.  He said he did not.

21) Noting again that he had not arranged treatment the Tribunal asked the applicant if there is anything further he wishes the Tribunal consider in respect of his application, he stated there was not.

Overall findings

22) The Tribunal accepts that the applicant has substantially met the conditions of his previously granted visas. 

23) The Tribunal has taken account of the fact that the applicant was previously included in a Protection visa application which was unsuccessful and that the applicant gave evidence he is uncertain as to whether he may be at risk, given the passage of time and that he has no evidence that he may be at risk

24) The applicant provided no written evidence that he had surgery in 2016 or that he required post-operative care or that the surgery was unsuccessful or that he may require further surgery.  Nevertheless, the Tribunal is prepared to accept that he had surgery and may require additional surgery.  However, as the applicant acknowledged in oral evidence no medical treatment had arranged nor did he provide any evidence that it would be arranged in the foreseeable future, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl.602.215(1)(a) to (c).

25) 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

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

Linda Holub
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).