El Ghoul (Migration)

[2020] AATA 4745

El Ghoul (Migration) [2020] AATA 4745 (4 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mustapha El Ghoul

CASE NUMBER:  1830975

DIBP REFERENCE(S):  BCC2018/3577260

MEMBER:Melissa McAdam

DATE:4 August 2020

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 04 August 2020 at 9:17am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant departed Australia– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 116

Migration Regulations 1994, Schedule 2, cls 602.217, 602.411

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 3 October 2018 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 14 September 2018. 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. Relevant to the delegate’s decision in this application are clause 602.217 and PIC 4013.

4. Clause 602.217 states:

   602.217  

   (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4013, and 4014.

   (2)  However, subclause (1) does not apply if the requirements described in subclause 602.212(6), (7) or (8) are met in relation to the applicant.

5. The relevant parts of Public Interest Criterion 4013 state that:

   4013

   (1)  If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):

   (a)  the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

   (b)  the Minister is satisfied that, in the particular case:

   (i)  compelling circumstances that affect the interests of Australia; or

   (ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years after the cancellation or determination.

   …

   (2)  A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

   …

   (ca)  because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

   Applicant’s Immigration History

6. The applicant came to Australia on a Student visa in 2012.  On 5 May 2014 the Department cancelled the applicant’s Student visa finding that s.116(1)(fa) applied to him.  The applicant applied to the AAT for review of that decision and on 5 September 2014 the AAT affirmed the Department’s decision.

7. On 8 October 2014 the applicant was granted a Bridging visa C.

8. In September 2018 the applicant applied for the Subclass 602 Medical Treatment visa.

   Applicant’s Medical Treatment Visa application

9. In his application the applicant provided the following information (summarised):

   a.    He is a Lebanese national from North Lebanon.  At the time of application he was 30 years old and single.

   b.    He wished to remain in Australia from September 2018 to September 2020 as ‘a current medical treatment visa holder who is requesting permission to study due to exceptional circumstances.’

   c.     He has neck, shoulder and back pain and needs an operation on a molar tooth.

   d.    He has two cousins in Australia.

   e.    He will use his savings, charity and his cousins’ support to maintain himself financially while in Australia.

10. He attached a Form 1507 signed by a Dr Kenan Ismail which states that the applicant has back pain and leg pain radiating to his left shoulder, right knee pain, and the loss of a third left molar tooth “that need long term to take care of”.

    Delegate’s decision

11. The delegate refused to grant the applicant the visa because she found that he did not satisfy clause 602.217 because he did not satisfy PIC 4013(1).

    Movement Record

12. The Department’s records indicate that on 20 February 2020 the applicant departed Australia.

    Tribunal Hearing

13. The applicant appeared by telephone from Lebanon before the Tribunal on 30 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information provided by the applicant at the hearing:

    a.The Tribunal asked the applicant if he understood why the delegate had refused to grant him a Medical Treatment visa and he responded no.

    b.The Tribunal explained it was because the delegate found that the applicant did not satisfy PIC 4013.  The Tribunal explained the meaning of PIC 4013, as relevant to the applicant’s circumstances.

    c.The Tribunal put to the applicant that it considered that the applicant did meet PIC 4013 because more than three years had passed since his student visa cancellation, before he applied for the medical treatment visa. The applicant responded that he understood.

    d.The Tribunal put to the applicant that it appeared however that he did not satisfy clause 602.411 of Schedule 2 of the Regulations. The Tribunal explained that this clause requires that if the applicant is in Australia at the time of visa application, he must be in Australia at the time of grant. Because the applicant was no longer in Australia he did not satisfy this clause. The applicant responded that he understood but had been unaware of the criteria.

    e.The applicant stated that when he applied for the visa he had a worker’s compensation problem. He could not access his funds in Lebanon.  He was living on the streets and could not continue this way so departed Australia.  He was injured in Australia and the doctors in Lebanon do not understand how to treat him.

    f.The Tribunal informed the applicant that there was a Departmental non-disclosure certificate on the department’s file, which referred to an anonymous allegation against the applicant. The Tribunal informed the applicant that it considered the information not relevant to his review application and that it was ignoring the information. The applicant responded ‘okay’.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issues in this case are whether the applicant meets PIC 4013 and whether he satisfies clause 602.411.

    PIC 4013

16. According to Departmental records the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was cancelled on 05 May 2014, under paragraph 116(1)(fa) (i) of the Migration Act.

17. According to Departmental records the applicant applied for a Subclass 602 (Medical Treatment) visa on 14 September 2018.

18. The Tribunal accordingly finds that more than three years passed between the date of cancellation of the applicant’s Student visa, and his application for a Medical Treatment visa.

19. The Tribunal therefore finds that the applicant meets PIC 4013.

    Clause 602.411

20. Clause 602.411 of Schedule 2 of the Regulations states:

    602.411 

    If the applicant is in Australia at the time of application, the applicant must be in Australia at the time of grant.

21. Departmental records show that the applicant departed Australia on 20 February 2020.  The applicant confirmed he is no longer in Australia.  He participated in  the Tribunal hearing from Lebanon.

22. As the applicant is not in Australia he cannot satisfy clause 602.411 for the grant of the visa.  The Tribunal therefore finds that clause 602.411 is not met.

23. 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

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

    Melissa McAdam
    Member