Fauzi (Migration)

Fauzi (Migration) [2020] AATA 2906 (5 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Taqwa Hikmahtullah Bin Fauzi
CASE NUMBER:  1823661
DIBP REFERENCE:  BCC2018/2201484
MEMBER:Rosa Gagliardi
DATE:5 March 2020
PLACE OF DECISION:  Melbourne
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 05 March 2020 at 1:39pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary entrant – car accident in Australia – medical conditions – importance of family unity – expert medical evidence – migration history – unlawful non- citizen – incentives to return to country of citizenship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Immigration on 9 August 2018 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 May 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).
The delegate refused to grant the applicant the visa because he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, for the purpose of medical treatment (cl.602.215).
The applicant appeared before the Tribunal on 10 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, Mr Fauzi Bin Aman who has also applied for a Medical Treatment visa in respect of the same matters.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. At the time of application the applicant had submitted little relevant evidence to demonstrate that he met the requirements of the visa.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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).
A “genuine visitor” is not defined in the Act, however, under policy ‘visit’ refers to the nature and duration of the proposed visit and the applicant’s genuine intention to leave Australia at the end of the medical treatment plan.
cl.600.215
(1)The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a)Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)Whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and
(c)Any other relevant matter.
(2)However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
In making a decision, the Tribunal has had regard to the following considerations:
-Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject
-Whether the applicant intends to comply with the conditions to which the visa would be subject
-Whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia
-The personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay
-The personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption)
-Conditions that might encourage the applicant to remain in Australia
-The presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia.
The review applicant came to Australia with his parents and three young siblings on a Tourist visa on 14 June 2012 to have a holiday. The review applicant is now 20 years of age. Four days after the applicant’s arrival in Australia, during their tourist activities, the family were involved in a serious motor vehicle accident which claimed the life of one of their sons, Master Jibrail Fauzi.
The accident has meant that the deceased’s family members were left with a variety of complex and serious medical conditions, both physical and psychological.
A priority for the review applicant and his wife is to keep the traumatised family members in Australia together for treatment as a family. The review applicant at hearing stated, and this has been reinforced by expert medical advice, that the family unit should not be broken up at this time as their continued treatment and advancement requires they have the support of each other. At hearing the Tribunal was concerned that the persons treating the review applicant and her family appeared not to have a plan in terms of setting goals and ensuring that they did not keep providing treatment without a plan for stabilisation, if not cure, for the family. In other words, the Tribunal had concerns that treatment was being provided on an open-ended basis. The medical evidence submitted demonstrates, however, that even though the accident occurred some eight years ago now, their conditions remain protracted, not least because of the uncertainty relating to their immigration status in Australia.
Migration history
It is apposite to note that the applicant’s migration history was largely determined by the actions of his parents in terms of the events post the accident. At the time of the accident the applicant was 13 years of age and was a minor. The degree to which the applicant’s parents’ judgement was impaired because of the accident can be ascertained via the separate decisions made by the Tribunal in relation to them (Nos. 1823650 and 18236530).
On 13 September 2012, the applicant applied for an onshore Student (subclass 572) visa as a dependant. This visa was refused on 29 October 2012. The applicant sought review of the decision and this was remitted to the Department on 10 December 2012. The applicant was again refused on 16 July 2013. The applicant again sought review and a decision to remit with direction was handed down on 23 April 2014. The student visa was subsequently granted on 19 January 2015.
On 24 August 2016 the applicant lodged an application for a Medical Treatment visa and was refused on 31 August 2016. The applicant sought review of the decision, however a decision of no jurisdiction was returned on 14 March 2017. On 21 May 2018 the applicant lodged a Medical Treatment (subclass 602) visa application which was refused on 9 August 2018 and is subject of this review.
Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject
Overall, the applicant has been an unlawful non-citizen in Australia for 439 days.
On the face of it, the applicant’s migration history is cause for concern. Nonetheless, the Tribunal accepts that the applicant and his family were attempting to stay in Australia to deal with the aftermath of the car accident in which each member sustained numerous physical injuries, trauma, as well as grief for their son/brother who is buried in Australia. The Tribunal accepts that the circumstances faced by the applicant and his family were and are extenuating and that the periods for which they did not hold valid visas can be accounted for by confusion and the family head (the applicant’s father) being focussed on the family’s health rather than hiding from the authorities in an attempt to attain a long-term migration outcome to Australia. The Tribunal therefore places less weight on the applicant’s period of unlawfulness which was not within his personal control and which was a function of his father’s and mother’s serious mental and physical conditions after their motor vehicle accident.
The applicant’s medical reports demonstrate that he has been diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder. Dr Melissa Glenwright, his psychologist, in a report dated 1 February 2020 has set out the background to the applicant’s condition.
…He was involved in a motor vehicle accident that involved actual and threatened death, (death of his youngest brother, and serious injury to his father and two brothers), and which involved intense fear, helplessness and horror…He believes that he was unconscious during the accident itself, as his first memory is of coming awake in the car and crawling out of the wreckage through a broken window. He said that both his parents were still in the car, but his three brothers were on the road far from the car. He said his father was in and out of consciousness and his mother also climbed out of the window. He remembers pulling his brothers off the road, his mother crying, feeling shut down, the ambulance and helicopter arriving on scene, a barrier being erected around his brother Jabril, police assisting his father from the wreckage…
Dr Glenwright also reported that the applicant is making slow progress as he continues to experience intrusion symptoms including dissociative flashbacks and recurrent distressing dreams. His symptoms have persisted for over seven years and have caused, according to Dr Glenwright, “significant distress and impairment in all areas of functioning”.
Dr Glenwright also stated that the applicant would benefit from ongoing psychological support and counselling and continued assistance from both his G.P and psychiatrist and that “it is fair to expect that he will require some mental health services for an additional 12 months”. The applicant’s psychiatrist has prescribed a combination of medication to assist the applicant.
Whether the applicant intends to comply with the conditions to which the visa would be subject
Given the applicant’s multiple medical conditions and from the applicant’s evidence at hearing, the Tribunal is satisfied that the applicant does not have any intention to work or to breach any other condition which might be attached to his Medical Treatment visa.
The personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay
At hearing the Tribunal raised the issue of the applicant’s family at the end of treatment being reluctant to depart Australia because his brother’s remains are here. Given the family’s means, the Tribunal accepts that the family can afford to visit Australia at any time to pay respects to their son’s/sibling’s grave. The applicants all stressed that they wanted to resume their lives in Singapore but that their current medical conditions meant that they were not in a position to do so.
The personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption)
Evidence has been submitted that the applicant’s father by virtue of his work in business in Singapore is in a good financial position. He has submitted bank statements and evidence of property holdings and investment portfolio, indicating that the applicant’s father also intends to return to his former work in Singapore and has not severed his ties to the basis of his current family’s wealth attained in Singapore. Both his mother and father also hold superannuation accounts that cannot be accessed from Australia but require them to be present in their home country.
The Tribunal also notes that the applicants are being covered for their treatment by the Transport Accident Commission (TAC), meaning that the family is not required to avail themselves of the applicant’s savings for this purpose.
Singapore is known to be a stable country and the Tribunal does not consider that the applicants are fleeing their home country due to civil disruption or economic necessity.
Data obtained by the Tribunal indicates that business conditions in Singapore remain optimistic (or no less optimistic than for most developed countries), for 2020 and 2021:
Singapore’s private sector started the new year on a positive note, with the Purchasing Managers’ Index (PMI) produced by the Singapore Institute of Purchasing and Materials Management (SIPMM) signaling improving business conditions for both the manufacturing and electronics sectors for the first time in 15 months. However, SIPMM noted that “any optimism may be temporary due to the novel coronavirus outbreak”.

For the second-consecutive month, operating conditions in the manufacturing sector improved on the back of stronger growth in new orders, new exports, production and job creation. The electronics sector, meanwhile, broke a 14-month streak of contraction due to increased new domestic and foreign orders, output and employment.

[1] Focus Economics, 4 February 2020, Jan Lammerson, Economist, accessed on 4 March 2020.
Looking ahead, although the January data is encouraging, much will depend on progress made in the Sino-American trade dispute. In the short term, moreover, the private sector is likely to be impacted by the outbreak of the coronavirus, which could disrupt regional and global supply chains. However, the outlook should improve later on in H1.[1]
Given these economic conditions the Tribunal is satisfied that there are strong incentives for the applicant to return to Singapore after treatment. It is true that the applicant being single and an adult now may wish to pursue his own path and achieve independence from his parents and other siblings, nonetheless, given the traumatic experience the family has undergone together, the Tribunal accepts that the applicant’s future is linked to where his parents will settle.
Conditions that might encourage the applicant to remain in Australia
The conditions that encourage the applicant and his family to continue to remain in Australia include the continuity of medical assistance they are receiving and the medical advice that they continue to receive treatment in Australia as a family unit. From the evidence the applicants have given themselves over to treatment (even if the Tribunal considers that treatment could be more intensive and focussed) and that otherwise there is little that might encourage the family to remain in Australia.
The presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia.
The family unit as it is now comprised is residing in Australia, although the Tribunal acknowledges that the applicants have extended family in Singapore. The Tribunal is satisfied, however, that the family being together in Australia is not a function of the applicant attempting to achieve a migration outcome for his family. Had this been the applicant’s intention, he might have achieved such a means via a business or other skilled visa.
Having had regard to the evidence before it the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Given the above findings, cl.602.215 is met.
There is no issue in terms of the applicant not being able to depart the country because his movement records show that he has already done so.
Given the findings above, 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
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.
Rosa Gagliardi
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).

[2020] AATA 2906

5 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Expert Evidence

Natural Justice