Elliott (Migration)

Elliott (Migration) [2022] AATA 3586 (26 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Donovan Luke Elliott
REPRESENTATIVE:  Mr Lorenzo Boccabella (MARN: 9580738)
CASE NUMBER:  2018523
HOME AFFAIRS REFERENCE(S):          BCC2020/2500649
MEMBER:Nicole Burns
DATE:26 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Statement made on 26 August 2022 at 5:02pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant no longer requires medical treatment – adverse migration history – not satisfied the applicant genuinely intended to remain in Australia temporarily for the purposes of medical treatment – Ministerial Intervention referral – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 602.211, 602.212, 602.215

statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 December 2020 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 October 2020. 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).
The delegate refused to grant the applicant the visa because they were not satisfied the applicant genuinely intended to remain in Australia temporarily for the purposes of medical treatment: cl 602.215.
The applicant appeared before the Tribunal on 23 August 2022 via video link to give evidence and present arguments about the issues in his case. The Tribunal also received oral evidence from his mother (Mrs Helen Reynolds) and stepfather (Mr Thomas Reynolds), who he lives with in Busselton, Western Australia (WA).
The applicant was represented in relation to the review. The representative did not attend the hearing.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 34-year-old Fijian national who applied for the visa to stay in Australia until 31 July 2021 for treatment related to his right knee reconstruction in the form of physiotherapy and rehabilitation. He provided a completed Form 1507 (‘evidence of intended medical treatment’), a copy of an operation report, and a letter from a senior physiotherapist in support of the visa application to the Department.
The delegate was not satisfied he genuinely intended to remain in Australia temporarily for the purposes of medical treatment because (as set out in the delegate’s decision record) he had not provided sufficient evidence to demonstrate his intention to depart Australia now or in the near future, and Departmental records confirm the applicant had unsuccessfully applied for a permanent visa onshore and taken every opportunity to present his case or circumstances for review. This led the delegate to conclude that the applicant’s migration history indicates he intended to continue to seek a visa pathway to stay in Australia on a permanent basis.
At the Tribunal hearing the applicant advised that he underwent physiotherapy after his right knee reconstruction in 2019, is now ‘fully recovered’, and no longer requires medical treatment. He acknowledged that therefore he was unable to meet the core criteria for the medical treatment visa but wanted his case to be considered for Ministerial intervention. His stepfather, Mr Reynolds said the representative had set out reasons why the applicant should be considered for Ministerial intervention in a written submission to the Tribunal. However, the Member noted at the time of the hearing no submission had been received and asked the applicant to send a copy, which he did shortly after the hearing. The submission was received by email on 26 August 2022.
Is the visit for medical or related purposes?
Clause 602.211 requires that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes. The Tribunal is satisfied when the applicant applied for the visa in October 2020 it was for the purposes of medical treatment in the form of physiotherapy and rehabilitation for his injured right knee. However, based on his oral evidence to the Tribunal that he has undergone treatment, is now fully recovered and no longer requires medical treatment, the Tribunal finds he does not meet cl 602.211.
Are the medical treatment requirements met?
For the same reasons the Tribunal finds the applicant does not meet clause 602.212 which requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8), as extracted in the attachment to this decision. These relate to the basis for which the stay in Australia is required. As noted, the applicant has advised he no longer requires or seeks medical treatment in Australia and therefore he does not satisfy cl 602.212(2) which relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). There is no suggestion that any of the other alternative sub criteria are relevant in this case.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
Clause 602.215 – which was the basis of the delegate’s refusal - 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). However, as the applicant has not turned 50, he does not satisfy the requirements in cl 602.212(6).
At hearing the applicant said he wants to stay in Australia permanently with his mother and stepfather, who he currently lives with in Busselton, WA. They provide him accommodation and financial support. He used to work as a welder in Fiji but has been unable to work here given restrictions on his bridging visa. He said he has no one left in Fiji. He confirmed he has lived in Australia since he last visited on 6 December 2017 and had applied for a permanent visa (an Other Family (Residence) (Class BU) visa) on 19 January 2018 based on having no relatives in Fiji, which was refused and affirmed by the Tribunal (differently constituted) on 24 June 2020. He was unsuccessful because his biological father is still alive in Fiji, even though he has no contact or relationship with him.
Based on the applicant’s oral evidence advising that he no longer requires medical treatment and of his wish to stay in Australia (and having no one in Fiji) and his immigration history, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes of the medical treatment visa. The applicant has been resident in Australia since 2017, has applied for a permanent visa (unsuccessfully), has asserted that he wants to stay here, and is seeking Ministerial intervention in order to do so.
Given the above findings, cl 602.215 is not met.
Ministerial Intervention request
In a written submission dated 15 August 2022 the representative asked the Tribunal to refer the case to the Minister so he can exercise his discretion under s 351 of the Migration Act to grant the applicant a visitor visa so he could recalibrate his status and apply for a training visa. He submits the applicant’s case falls within the ‘unique or exceptional circumstances’ category in the Ministerial Guidelines: specifically, in respect of ‘circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case’. The representative explains that the applicant was refused a remaining relative visa because his biological father was still alive in Fiji however he was abandoned by his father and has no contact with him. The representative argued this was an ‘unintended consequence’ or an ‘unfair or unreasonable consequence’ of the remaining relative regulations wherein the applicant was denied a visa in circumstances where he met the spirit but not the actual text of one criterion.
Additionally the representative states that as the applicant was not given permission to work whilst holding a bridging visa, he was unable to accrue work experience necessary to apply for a Subclass 491 or 494 visa; that Australia would benefit from him being able to apply for a training visa; an employer in Busselton is willing (and able) to employ the applicant as a welder and train him; and that to apply for a training visa the applicant would need a visitor visa, which he cannot apply for given he is s48 barred. He adds that regional Australia is ‘crying out’ for skilled labour for individuals willing and able to live in places like Busselton; Australia is about to increase its skilled visa intake; and that giving the applicant a visa to enable him to join Australia’s skilled workforce pool makes sense, particularly given he has the basic skills, needs a year as a trainee to make his skills job ready for Australian industry, and has a prospective employer.
The Tribunal has had regard to the Minister’s Guidelines on Ministerial Powers which identifies the type of cases that should be brought to the Minister’s attention. Whilst the decision under review relates to a decision to refuse to grant the applicant a Medical Treatment visa (Subclass 602), it has been submitted the refusal to grant him an Other Family (Residence) (Class BU) visa based on his biological father being alive in Fiji, even though he has no relationship with him, can be considered an ‘unintended consequence’ or an ‘unfair or unreasonable consequence’ of the relevant regulations.
It is unclear why the applicant (and/or his representative) did not seek Ministerial intervention after the decision to refuse to grant him an Other Family (Residence) (Class BU) visa was affirmed by the Tribunal (differently constituted) on 24 June 2020[1]. Nonetheless, having regard to the Tribunal’s decision record in that case, it appears that whilst the Tribunal accepted the applicant had little or no contact with his father, and that there was no meaningful relationship between them, that did not disqualify the applicant’s father from being a near relative and therefore the applicant was not considered a remaining relative. In circumstances where he has no contact or relationship with his father, no other relatives in Fiji, and lives with his mother (and stepfather) in Australia, the current Tribunal agrees this may be considered a ‘circumstance not anticipated by relevant legislation’. For this reason, the Tribunal has decided to refer the matter to the Minister for consideration as per s 351 of the Act.
[1] AAT No. 1836521
decision
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Nicole Burns
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).

[2022] AATA 3586

26 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction