DIB (Migration)

[2019] AATA 424

DIB (Migration) [2019] AATA 424 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Doumit Gerges DIB

CASE NUMBER:  1731749

DIBP REFERENCE(S):  BCC2017/4117462

MEMBER:Linda Holub

DATE:22 January 2019

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 22 January 2019 at 1:17pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – genuine temporary entrant –existing medical condition – no evidence of medical treatment arranged – poor immigration history – extended period of unlawfulness in Australia – outstanding legal proceedings in Lebanon

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cls 600.212, 600.215

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 27 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 1 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 27 November 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

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 satisfies the requirements of cl.602.215 which requires that he 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. The records of the Department indicate that the applicant was in Australia at the time of application on 27 November 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 the applicant was born in July 1946 and therefore he has turned 50 years of age.  The applicant confirmed his date of birth and that he is 72 years of age.  Accordingly, the Tribunal finds that as he has turned 50 years of age he satisfies the requirements of cl.602.212(6)(b). 

3. In relation to the applicant’s previous [permanent]visa application the Tribunal asked him why it was refused.  [Information deleted].  He stated that the solicitor is in jail and that the solicitor damaged his life.  He said he kept taking money from him but when asked about progress the agent was unable to provide any information.  He stated that he was never informed of the refusal decision.  He only found out when he was unable to access Medicare.  

10)On the evidence before the Tribunal it finds that although the applicant meets cl.602.212(6)(c), he does not meet cl.602.212(6)(d).  The applicant applied for a permanent visa while in Australia, was refused the visa but did not meet all the criteria for the grant of the visa.  As he not satisfy the requirements of cl.602.212(6)(d), he is unable to meet the requirements of cl.602.212(6) in its entirety.

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

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

13)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?

14)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).

15)The applicant is a Lebanese national.  At the time of application he sought the visa for the period 1 November 2017 until 30 April 2019.  On the application form he indicated that he required open heart surgery, had collapsed lungs and blocked arteries in his right leg.  On the Form 1507 of the application, the medical practitioner wrote that the medical condition requiring treatment is peripheral vascular disease and the treatment information required was referral to a vascular surgeon for opinion on vascular surgery to his lower limbs.  There was no reference to the collapsed lung condition.

16)The applicant provided the Department with a copy of a referral from his GP dated 19 October 2017, an eDischarge Summary from the Western Sydney Local Health Network dated 31 July 2017 and associated medical records.

17)The Department’s Decision Record outlines the applicant’s migration history as follows: He first came to Australia as the holder of a Tourist visa subclass 676 on 29 March 1996 and has remained onshore since that time.  The day before his visa was due to cease he was granted a Tourist visa subclass 686 which was valid until 24 December 1996.  On that date, he was granted a further onshore Tourist visa, for stay until 5 April 1997.  The applicant lodged a [permanent]visa application on [date] April 1997.  That application was refused in May 1997 and that decision was later affirmed by [a former tribunal].  His associated Bridging visa ceased on 30 June 1998 and he remained unlawfully in Australia until 11 October 2017 when he was granted a Bridging visa E for stay until 25 October 2017.  On 1 November 2017, the applicant lodged this application for a Medical Treatment visa for an indefinite stay in Australia.

18)The Tribunal put it to the applicant that he has been onshore for over 20 years and during that time he was unlawful for long periods.  He responded that he had sought intervention by the local Member of Parliament.

19)When asked why he come to Australia, he claimed that he had been pursued by parties.  He referred to having a supermarket in Lebanon which was not successful.  He sought assistance from his relatives and was under pressure from Lebanese forces. He stated that he has been deprived of having being with wife and daughter for 22 years and that if he was well he would return.

20)The Tribunal put it to the applicant that the Department’s records show that after the [permanent]visa was refused and the decision was affirmed by [a former tribunbal] he had remained unlawfully in Australia from June 1998 until October 2017.  He responded that if he had been unlawful why was it he was able to renew his license and stated that his address and phone number had not changed.  [Information deleted].

21)[Paragraph deleted].

22)The Tribunal reminded the applicant that it must be satisfied that he will depart Australia and a factor in its consideration it his migration history.  The Tribunal explained that he was unlawful in Australia for a very long time and that it appears that he does not want to return to Lebanon.[Details deleted].  

23)Following the hearing he applicant provided a document from [a law enforcement agency] dated [December] 2018.  It refers to a verdict of [a court]of [date] June 2004 of [a criminal penalty]and a statement by his attorney stating that:

As it is known that my Mandator is outside these Lebanese lands since more than ten years, we have been informed that there are judicial proceedings by his name which are not known before us or notified to us”[1].

[1] AAT file, folios 91 and 92.

Findings

24)The Tribunal has considered the applicant’s migration history the incentives for the applicant to remain in Australia and the written evidence in relation to his medical treatment and other information put by the applicant.  The Tribunal has had regard to the fact that the applicant has been onshore since 1996 and has been unlawful for extended periods.  It is the view of the Tribunal that this indicates the applicant wishes to remain in Australia.

25)The Tribunal accepts that the applicant may have some outstanding legal proceedings in Lebanon.  However, the implications for him, some fourteen years later are unclear.  In any event, the purpose of a medical treatment visa is not to provide a mechanism for an applicant to avoid legal proceedings in their home country.

26)The Tribunal has considered the various medical reports by the applicant provided in the context of the application and subsequently to the Tribunal including post-hearing submissions.  The Tribunal accepts that the applicant has had health treatment in Australia including cardiac surgery and treatment for collapsed lungs and that he may require future treatment.  Aside from ongoing management, no evidence was provided that specific treatment that had been arranged. The Tribunal accepts that the applicant made prefer to remain in Australia and to continue to access medical treatment here.  However, no evidence was presented that the applicant’s conditions cannot be managed appropriately in Lebanon.  The Tribunal has had regard to the fact that the applicant has extended family in Lebanon. 

27)Given the above findings, cl.602.215 is not met.

28)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

29)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).