Din (Migration)

[2018] AATA 47

Din (Migration) [2018] AATA 47 (9 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahabu Din

CASE NUMBER:  1708813

DIBP REFERENCE(S):  BCC2017/1130431

MEMBER:Roslyn Smidt

DATE:9 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 January 2018 at 2:56pm

CATCHWORDS

Migration – Medical Treatment (Visitor) (Class UB) visa  – Subclass 602 visa – Genuine temporary entrant – Elderly applicant – Eye surgery required – Complied with previous visa conditions

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

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 4 April 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 22 March 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 she was not satisfied that the applicant genuinely intended to remain temporarily in Australia and therefore not satisfied that he met cl.602.215 of Schedule 2 to the Regulations

4. The applicant appeared before the Tribunal on 30 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his son, Yaseen Mohammad Dean. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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).

6. The applicant arrived in Australia on 5 January 2016 on a visitor visa valid until 5 January 2017. On 19 December 2016 he applied for a Medical Treatment visa in order to consult an Ophthalmologist in February or March 2017. He was granted a visa valid until 1 April 2017. On 22 March 2017 he applied for a second Medical Treatment visa as he was scheduled for cataract surgery in August 2017. This application was refused as the delegate was not satisfied that the applicant genuinely intended to remain in Australia temporarily for the purpose of receiving medical care. She noted that he had already been in Australia for 14 months at the time of the application and that cataract surgery is a day procedure which does not generally require extensive follow up.

7. At the hearing the visa applicant’s son explained that his father did not arrange surgery for his eye when he first arrived in Australia as at that time his sight was much better at that time. In addition he was fearful of further surgery because he had lost the sight of one eye following surgery in Fiji in the past. The visa applicant’s son said that when his father’s second application was refused he cancelled the arrangements which had made for surgery in August 2017 as he was unsure whether it was permitted to have this procedure done if his father did not hold the appropriate visa. He also explained that he had great confidence in the doctor who was caring for his father and while it might have been possible to find someone who could perform the operation sooner he did not want to use someone he and his father were not confident could perform the operation.

8. In support of his application the applicant has provided a letter from Doctor S Lersumitkul of Lerts Tan Ophthalmic which states that the applicant has lost the sight in one eye due to pervious surgery and is now legally blind in the other eye as a result of a cataract. It states that he is scheduled for surgery on 14 February 2018 and will require 3 months post-operative monitoring and possible care.

9. The applicant’s son has provided evidence of the presence of a large extended family in Fiji which included two children and a number of grandchildren of applicant’s which he said provided a strong incentive for them to return to Fiji.

10. The applicant and his son were aware that failure to comply with the conditions of the visa, in particular failure to leave at the end of the permitted period, could cause difficulties in relations to future applications to visit Australia and were adamant that the applicant would leave return to the Fiji prior to the expiry of his visa.

11. The applicant and his son gave convincing evidence regarding the applicant’s circumstances and his intention to leave Australia following surgery to his eye and follow-up monitoring and treatment. The Tribunal accepts that while cataract surgery is usually a relatively simple procedure which would not require 3 months post-surgery follow up, the applicant is elderly and has already lost the sight in one eye and has provided evidence from an ophthalmic surgeon that an extended period of monitoring is required in his case. The Tribunal accepts the applicant genuinely requires this time to complete treatment for his cataracts. The Tribunal also accepts that the applicant’s son cancelled his early appointment as he was concerned that he could not proceed with the surgery unless he held an appropriate visa and not in order to extend his stay in Australia.

12. The Tribunal notes that the applicant has previously visited Australia on eight occasions and has always complied with the conditions on his visa. The Tribunal also notes that the applicant has two daughters, several grandchildren and a large extended family in Fiji.

13. After considering all of the relevant evidence the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes of medical treatment.

14. Given these findings, cl.602.215 is met and 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

15. 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.

    Roslyn Smidt
    Member