GIRI (Migration)

GIRI (Migration) [2020] AATA 3548 (9 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr KESHAV GIRI
CASE NUMBER:  1819299
DIBP REFERENCE(S):  BCC2018/2390890
MEMBER:Jane Marquard
DATE:9 July 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 09 July 2020 at 9:04am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily –no evidence to show applicant is medically unfit to depart Australia –lack of compliance in the past – long period of stay in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
BACKGROUND AND APPLICATION FOR REVIEW

The applicant is a 31-year-old man from Kathmandu, Nepal.
He first arrived in Australia on 13 January 2009 on a Student TU 572 visa. He had a number of student visas until 31 May 2016 when his student visa was cancelled. His appeal to the Federal Court in relation to his cancellation was unsuccessful on 7 May 2018.
On 24 May 2018 the applicant applied for a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act). 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).
On 12 June 2018 a delegate of the Department for Home Affairs (the Department) refused to grant the applicant the visa. The delegate refused to grant the applicant the visa because he or she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, medical treatment.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The applicant lodged his application for review on 24 May 2018.
COMMUNICATIONS WITH THE TRIBUNAL
The Tribunal wrote to the applicant on 14 May 2020 to request information, as follows:
You indicated in your application that you wished to remain in Australia from 3 June 2018 until 2 September 2018 for the purpose of undergoing medical treatment (Q. 15 of Form 48ME). You stated that this treatment involved ultrasound and a referral to a surgeon for excision. Your application was refused because you did not meet cl.602.215. Clause 602.215 requires that an applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
You are invited to provide the following information in writing:
1. When did the medical treatment you have undertaken end, or when is it due to end?
2. Noting that you have been in Australia since 2009 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
The Tribunal requested the information be provided by 28 May 2020 or that an extension be requested by that date. The applicant was notified in the letter that if a response or request for information was not received by 28 May 2020 the applicant would lose any entitlement he may have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 27 May 2020 the Tribunal received an email from the applicant as follows:
I am writing in regards for my application on refuse to a Medical Treatment Visa (Subclass 602). I would like to thank you for accepting my application and also I would like you to grant me few time to provide evidence and proof. As my treatment is related to a unidentify lump behind my head, specialist did not rush for surgeory. Treatment is still undergoing and things are getting better with time.Due to this pandemic (CORONA VIRUS CRISIS) my next treatment is on 11th JUNE 2020.I would like to request you to consider me a time until 12th JUNE 2020 in regards I will be able to collect relevent document and a letter from my case specialist for my application. With present situation I am having few difficulties in gather evidence.And I request you to grant me time until 12th JUNE 2020, I will be greatful to you.
On 28 May 2020 the Tribunal granted the applicant an extension until 12 June 2020 as requested. The Tribunal informed the applicant that if the information was not received by 12 June 2020 the applicant would lose any entitlement he may have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 15 June 2020 the applicant wrote to the Tribunal as follows:
Thank you for your consideration of extention of time for my case.As I had undergone my check up on thursday (11th june 2020),doctor has set my last and final check up on 30th of june 2020 and he will be giving me clearance of my medical treatment.Due to limited people working they advice me, my report on last thursday's treatment can only be handed me on 29th of june 2020,one day prior to my last check up.At this moment I would like to request you to set my case date until 30th june 2020.I will attach my report ones I will be handed me by the medical reprensentative.

I would like to request you for consideration regarding my case.
On 16 June 2020 the Tribunal responded to the applicant’s email dated 15 June 2020. The Tribunal stated that the applicant had been informed on 28 May 2020 that if a response was not received by the Tribunal by 12 June 2020 then he would lose his entitlement to appear before the Tribunal to give evidence and present arguments. The Tribunal informed the applicant that as he had not responded by 12 June 2020 he had lost his entitlement to a hearing. The Tribunal informed the applicant that he could still provide medical reports or submissions for consideration to the Tribunal by 3 July 2020. As at the date of this decision, no response had been received from the applicant.
The emails from the Tribunal were sent to the last address provided in connection with the review. The applicant’s responses to earlier emails indicated that he was initially engaged and responsive to communications from the Tribunal at this address. In these circumstances, the Tribunal is satisfied that he was aware of the request for information and understood the importance of providing relevant documentation. It considers that his failure to respond indicates that he does not intend to provide information to the Tribunal.
The applicant has not provided information within the prescribed period or extended period. In these circumstances, s. 359C of the Act applies. Pursuant to s.360(3) of the Act, the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has therefore decided to proceed to decision without taking further steps to obtain the information.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted, medical treatment (cl. 602.215). This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl.602.212(6).
Is the applicant unfit to depart Australia?
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(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.
The applicant’s birth year is 1989, as provided in his personal particulars and on his passport. As he has not turned 50, the requirements in cl.602.212(6) are not met. There is no suggestion that any of the other alternative sub criteria are relevant in this case.
Given the above findings, the Tribunal must consider whether the applicant has a genuine intention to stay temporarily for the visa purpose.
Does the applicant genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted?
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 does not apply, as referred to earlier.
The Tribunal has taken into account whether the applicant has complied substantially with conditions of last held substantive visas, his intention to comply with conditions of the visa and other relevant matters.
The applicant has been in Australia for a substantial time period, first arriving on 13 January 2009 on a Student TU 572 visa. He remained in Australia until 2016 on various student visas. However on 31 May 2016 his most recent student visa was cancelled. He sought review unsuccessfully in the Federal Court on 7 May 2018. He then lodged an application for this visa.
The Tribunal has given weight to the fact that the applicant’s student visa was cancelled in making a finding that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, given that this indicates non-compliance. The Tribunal is also not satisfied that he intends to comply with conditions to which the Subclass 602 visa would be subject, given that his student visa was cancelled and that he has been in Australia on various visas since 2009. HIs migration history does suggest that the applicant has an intention to stay permanently in Australia given that he has applied for and been granted numerous visas from 2009 until 2016 and he then appealed his cancellation. This indicates a strong motivation to stay in Australia permanently as his actions are not consistent with a person who whose claimed intention is to stay temporarily in Australia for the purpose of medical treatment or related purpose. Further he did not depart in September 2018 which was the end of the period requested for medical treatment.
Despite requests for this information, the applicant has not provided current medical reports regarding his past, present or proposed medical treatment. Without this information it is difficult to make a finding that the applicant genuinely intends to stay temporarily for the purpose of medical treatment. In his Application, Form 48ME, he said that he would be under medical care from 3 June 2018 until 2 September 2018. Asked to describe the treatment he said that he had been seeing his general practitioner, Dr Low. He did not provide information about a doctor in his home country who referred him. In his Form 1507 he said that his medical condition was a ‘large subcutaneous lesion on posterior neck, and the treatment required was ultrasound and referral to surgeon for excision. When up-to-date medical information was requested, given that these dates have passed, on 27 May 2020 the applicant said that as the lump was unidentified, they did not rush into surgery and it got better over time. He said that he was seeing his doctor on 11 June 2020 and would provide medical reports. He later asked for an extension of time to provide reports until 30 June 2020. The Tribunal provided him with an extension of time until 3 July 2020 but no reports have been provided as of the date of this decision.
The absence of information about the medical treatment he wishes to obtain contributes to a finding that he does not genuinely intend to stay temporarily for the purpose for which the visa is granted, as the Tribunal is unable to assess whether he needs to stay for medical treatment on a temporary basis.
Further the applicant has not provided any other evidence of incentives to return to Nepal or any other evidence of an intention to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal asked him to provide this information by 28 May 2020 and then granted him an extension of time until 12 June 2020. He was then invited to provide any information by 3 July 2020. However no information was provided to the Tribunal.
The Tribunal has considered these matters cumulatively, including his long period of stay in Australia and his non-compliance with his student visa as well as absence of information supporting a genuine intention to stay temporarily. As there are no new medical reports to indicate why he seeks to stay for medical treatment, and he did not depart at the end of the period originally sought for medical treatment, the Tribunal is not satisfied that he genuinely intends to stay temporarily for the purpose for which the visa is granted.
Overall the evidence indicates and the Tribunal finds that the applicant does not have a genuine intention to stay temporarily for the purpose of medical treatment or related purposes.
Given the above findings, cl.602.215 is not met.
Concluding paragraphs
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Jane Marquard
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 3548

9 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction