El Mir (Migration)

[2022] AATA 2712

El Mir (Migration) [2022] AATA 2712 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr El Mir Halmi El Mir

CASE NUMBER:  2109365

HOME AFFAIRS REFERENCE(S):          BCC2017/4089344

MEMBER:Catherine Carney-Orsborn

DATE:15 June 2022

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 15 June 2022 at 10:28am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – Federal Court remittal – genuine temporary entrant – back, neck, and shoulder pain – anxiety and depression – cataract surgery postponed – 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 and Border Protection on 14 December 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 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 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant met the requirements in cl 602.512 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant is a genuine temporary visitor.

4. The matter was remitted by the FC on 21 June 2021 on the basis that the Tribunal failed to assess the applicant against cl 602.212(2), which undermined its later findings in relation to cl 602.215.

5. The applicant appeared before the Tribunal on 18 May 2022 to give evidence and present arguments.  A community member made submissions on the applicant’s behalf.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 primary criteria at the time of decision.

9. The information before the Tribunal, which was previously supplied by the applicant to the Department and a differently constituted Tribunal indicates that the applicant was involved in a motor vehicle accident in March 2015.  He left Australia and returned to Lebanon in April 2015. 

10. He provided reports from doctors in Lebanon which indicate he received medical treatment in Lebanon.  He returned to Australia in March 2017 on a Medical Treatment Visa.  In the application for his medical visa, he stated he suffered a motor vehicle injury, whiplash neck injury, shoulder pain, chest pain and lower back pain.  The Treatment was listed as pain killers and physiotherapy.

11. The applicant provided medical evidence to a previous differently constitution Tribunal which included, a copy of a referral to a specialist dated 29 August 2017 stating he had a problem with his eye, a referral to a psychologist for an anxiety disorder dated 8 September 2017, letter from psychotherapist stating she was treating the applicant from May until October 2015 for depressive symptoms, a letter from a medical practitioner dated 18 march 2017 stating the applicant was complaining of severe pain in his shoulder and left leg.

12. A letter from the applicant’s GP dated 24 January 2019 which referred to his motor vehicle injuries being left ankle, chest, left elbow, back, neck and eye being injured.  It states he suffers from severe anxiety disorder related to chronic pain syndrome.  It stated he is waiting to have surgery to his right eye. 

13. The applicant provided to this Tribunal a letter from a health professional stating that he is undergoing surgery for cataracts in July 2022.

14. The applicant provided a report from a Psychologist dated 27 April 2022 stating that he was suffering from depression and an anxiety disorder and is attending psychological counselling and has been prescribed medications by his general practitioner including Xanax.  The report stated that his anxiety and low mood was caused by constant pain and discomfort from his motor vehicle accident on 15 March 2015 and being separated from his family who are in Lebanon.

15. The applicant provided a report from Bay audio dated 5 May 2022 which states his hearing test indicates he suffers from significant hearing loss and further diagnostic testing is required.  The report stated that “these results are not intended to be a diagnosis….”

16. At hearing the applicant provided evidence.  A summary is as follows.

17. He stated he was born in May 1969.  He is now around 52 years of age.  He indicated he had no difficulty understanding the interpreter.  The Tribunal explained the issues the Tribunal was considering and the purpose of the hearing.

18. The applicant stated that he had visited Australia five times before he was involved in a motor vehicle accident.  In 2015 he was injured in a motor vehicle accident.  He stated that the claim has now been resolved and he was paid compensation of $AU45,000.

19. The Tribunal asked what medical treatment he required.  He responded that he had injuries to his ankle, right eye, psychological and other areas including his shoulder and back.

20. The Tribunal asked the applicant what medical treatment he was undergoing.  He responded that he was having surgery on his right eye.  Cataract surgery.  He provided a letter stating he was booked in to have surgery in July 2022.

21. The Tribunal noted that he had previously provided a report dated 2017 which indicated he was needing surgery for a cataract for his right eye.  The Tribunal queried why he still had not had that surgery.

22. He stated words to the effect that he postponed the surgery as he was worried that he would be asked to leave Australia and he wanted to know what was to happen with his visa. 

23. The Tribunal asked the applicant why he could not have the cataract surgery in Lebanon.  He stated words to the effect that there are a lot of problems in Lebanon, corruption, economic and that hospitals do not have medications. He claimed he could not access treatment over in Lebanon.  He states he wanted to receive treatment in Australia. 

24. The Tribunal put to the applicant that it could look like he was delaying in order to stay in Australia.  The Tribunal explained it was looking at whether he was unfit to depart Australia and further his genuine intention to only stay in Australia temporarily for medical treatment.   

25. He stated he wanted a visa to stay a few more months.

26. The applicant’s support person indicated the applicant wanted a visa so that he could return to visit his family in Lebanon and then return to have his treatment.

27. The Tribunal asked about his medical plan in Australia.  He responded that with the massage and medication provided to him he has improved a lot.  He claims he has made arrangements to pay the doctor for his cataract surgery.  He claims he has a lucrative business in Lebanon, and he has three brothers in Australia who will support him.

28. The Tribunal again queried the delay in getting his cataract operation as it was first flagged with the Department in 2017.  He said his doctor was now in America and repeated he wanted his visa situation resolved.  The Tribunal pointed out he has been on a bridging visa for some time and could have had the operation.   

29. He repeated he wanted to have his visa granted so he would have to leave Australia after his operation.

    Are the medical treatment requirements met?

30. 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(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:

    ·the arrangements for treatment have been concluded

    ·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia

    ·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community

    ·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and

    ·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.

31. The Tribunal accepts that the applicant has booked in for surgery for cataracts in July 22.  The treatment is not for an organ transplant.  There is nothing to indicate that the applicant has a disease or condition which is a danger to the Australian community.  His evidence is that he has made arrangements for payment for his treatment. 

32. No evidence other than his assertion was made that this is the case, however the Tribunal accepts that he has financial resources available to him and could pay for that treatment.

33. He claims such costs will not be a charge on the government or public authority in Australia.

34. Given the above findings, the requirements in cl 602.212(2) are met.

35. All criteria must be satisfied at the time a decision is made on the application.  The Tribunal will consider the other relevant criteria.

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

36. 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) which requires that an 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.

37. The applicant is in Australia.  The applicant at time of decision is over 50 years of age.

38. He has not applied for a permanent visa in Australia.

39. At hearing the applicant provided evidence that he wants a visa so he can return to see his family in Lebanon and then return to Australia for treatment. 

40. There was no evidence before the Tribunal from any health professional which would indicate that he was unfit to depart Australia.  No evidence was provided by a Medical Officer of the Commonwealth as required above.

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

42. The Tribunal has found that the applicant does not meet 602.212(6).

43. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

44. In the present case, the visa applicant seeks the visa for the purposes of continuing treatment for injuries he claims he suffered in 2015 and cataract surgery to his right eye.

45. At hearing he stated he had much improved in relation to his back, neck, shoulder and other injuries.  He claims that massage and medication have assisted him.  The psychologist report, he provided in relation to his anxiety and depression, state that he is on medication.  The Tribunal is satisfied that the above issues could continue to be treated in Lebanon.

46. In relation to the cataract surgery, his need for that surgery was first indicated in his application for a further medical treatment visa in 2017.  He has not had that surgery.  At hearing he stated he postponed such surgery as he wanted to see the outcome of his application for a further visa.

47. The Tribunal put to the applicant that it was concerned he was using the medical treatment visa as a way of staying in Australia.  He maintained this was not the case however he did want the visa so he could return to visit his family in Lebanon and then return to Australia for further treatment.

48. On the evidence before it the Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily for the visa purpose.  He has been in Australia since 2017 and has not undertaken cataract surgery.  He provided evidence to the Department in 2017 that he was to undergo cataract surgery, and this has not happened. 

49. He indicated that his lawyer did not explain he could have the surgery while on a bridging visa.  There is nothing to indicate that the applicant did not have competent assistance.  He was able to navigate the appeals process and at the same time sought and received medical treatment for his other conditions and injuries which he has indicated is now much improved.  The Tribunal does not accept that he waited for cataract surgery due to his concern about being on a bridging visa.

50. The applicant’s evidence is that he is feeling much improved after treatment in Australia and Lebanon.

51. In relation to his cataract surgery the fact it has been postponed and delayed since 2017 could indicate it is not an urgent or critical matter.

52. Cataract surgery can generally be performed as day surgery with a short recovery time.  There is nothing before the Tribunal to indicate that this is not the case.

53. The applicant claims he is unable to access a hospital in Lebanon to undergo such surgery and that there are no medications available.

54. He is not suffering from any serious or debilitating condition.  He is not receiving critical medical care.  On the evidence before the Tribunal, it is satisfied he could receive treatment such as massage, medications and cataract surgery in Lebanon.

55. The applicant provided evidence to the Department that shortly after his motor vehicle accident he returned to Lebanon in 2015 and received medical treatment.

56. He has received a substantial compensation payout and will be able to pay for medical treatment.  The Tribunal accepts that Lebanon is currently suffering some concerns and issues however private hospitals and persons who can pay for treatment can access such treatment.

57. On the evidence before it the Tribunal finds that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. 

58. Given the above findings, cl 602.215 is not met.

59. 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

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

    Catherine Carney-Orsborn
    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).