Gunawan (Migration)

[2023] AATA 3497

Gunawan (Migration) [2023] AATA 3497 (14 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suci Raharjo Gunawan

REPRESENTATIVE:  Mr Konfir Kabo

CASE NUMBER:  2303347

HOME AFFAIRS REFERENCE(S):          BCC2023/63633

MEMBER:Rachel Da Costa

DATE:14 August 2023

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 14 August 2023 at 12:16pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa and compliance with conditions – treatment to knee – long period as unlawful non-citizen and 10-year-old child now Australian citizen – consent to decision without hearing and intention to apply for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 21 February 2023 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 6 February 2023. 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 that the applicant genuinely intended to remain in Australia on a temporary basis.

4. On 9 March 2023, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant provided the Tribunal with a copy of the delegate’s decision.

5. On 14 July 2023, the applicant made a written request for an expedited decision by the Tribunal. The reason given was as follows:

   Our client’s Medical Treatment Visitor (subclass 602) visa application was refused on 21 February 2023. The application was refused as clause 602.215 in Schedule 2 of the Migration Regulations was not met. Immigration’s case officer was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

   We note our client has a son who upon turning 10 years old has attained Australian Citizenship. Therefore, our client is aware that his visa application and subsequent appeal will not be successful but is a necessary path to request Ministerial Intervention. Please see attached our submission letter and supporting documents for more information. As such, we request for expedited processing so that our client’s appeal can be finalised as soon as possible.

6. On 8 August 2023, the applicant’s representative wrote to the Tribunal confirming that the applicant consented to the Tribunal making a decision on the papers without taking the further step of conducting a hearing in his application. This matter has therefore been determined on the evidence available to the Tribunal.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 meets the criteria for the grant of the visa and more particularly, whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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

10. 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.

11. Based on the evidence before the Tribunal, the Tribunal finds that the applicant is in Australia and he was born in 1986, which means he is 37 years old. There is no evidence before the Tribunal to indicate that he has applied for a permanent visa in Australia, or that he 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. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

12. In the present case, the visa applicant seeks the visa for the purposes of medical treatment (including organ recipient) or consultation in Australia. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

13. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. While there is no evidence before the Tribunal to indicate that the applicant did not substantially comply with the conditions to which his last substantive visa and subsequent bridging visas were subject, as set out in the delegate’s decision and noted by the applicant in his Medical Treatment visa application form, the applicant has spent a lengthy period of time in Australia unlawfully without a visa. This period was from the time his last substantive visa ceased on 27 November 2012 until he was granted a Bridging visa E on 10 February 2023 in association with this visa application.

14. A Medical Treatment visa is subject to the conditions 8101 (no work) and 8201 (maximum 3 months study). In his Medical Treatment visa application form, the applicant has indicated that his stay would be self-funded and he agrees not to undertake study or training for more than three months. On this basis, the Tribunal is satisfied that if the visa were granted, the applicant would comply with the conditions to which the Subclass 602 visa would be subject.

15. In considering any other relevant matters, the Tribunal has considered the applicant’s migration history and evidence about his intentions to depart or remain in Australia.

16. In his Form 1507 which accompanies his Medical Treatment visa application, the applicant states that the condition requiring treatment is “right knee pain and swollen” and the treatment information is “awaiting knee x-ray; trial of NSAIDs; refer to physio if XR result favourable”. The form is completed by Dr C Goeltom of Eastern Medical Centre, 102 Cleeland St, Dandenong, Victoria.

17. On 7 February 2023, the Department wrote to the applicant inviting him to comment on his migration history and to provide evidence that he is a genuine visitor and he has incentives to depart Australia if he were granted the visa. On 13 February 2023, the applicant’s lawyer responded in writing as follows:

    …

    Our client acknowledges that the Department of Home Affairs (‘Department’) has received adverse information in the processing of his Medical Treatment visa application and has instructed us to inform the Department that he intends to continue residing in Australia to be with his Australian citizen child.

    …

18. In his Medical Treatment visa application form, the applicant has indicated that he is a citizen of Indonesia, he is married and he lives in Australia with his wife.

19. According to the delegate’s decision, the applicant first arrived in Australia in May 2008 as the holder of a Student visa. He departed Australia on 28 October 2010 and returned to Australia on 11 November 2010 and he has not departed since. Since this time, he was granted two further Student visas, the last of which ceased on 26 November 2012. He lodged his application for a Medical Treatment visa on 6 February 2023 and was granted an associated Bridging visa on 10 February 2023.

20. The Tribunal also has before it copies of the following relevant documents:

    ·Australian Citizenship certificate of the applicant’s child, indicating citizenship was acquired on 23 December 2022;

    ·Letter from the applicant addressed ‘to whom it may concern” dated 11 January 2023 which relevantly states:

    …

    I have been fully advised by Kabo Lawyers that the Substantive visa I am going to apply for will be refused.

    I have also been fully advised by Kabo Lawyers that the subsequent appeal will also be refused.

    I am aware that that is the only way to access Ministerial Intervention and I agree to these steps.

    …

    ·Letter from the applicant’s lawyer dated 14 July 2023 which sets out the background to the applicant’s situation. It explains that the applicant and his wife first came to Australia in January 2012.[1] On 26 November 2012, they both became unlawful. Their son was born in Australia on [Date] and has now acquired Australian citizenship. The applicant and his wife have remained unlawfully in Australia. The only option for them is to seek Ministerial Intervention. The letter states that the lawyers have advised the applicant and his family that his visa application and subsequent appeal will not be successful but it is a necessary path.

    [1] The delegate’s decision and Departmental movement records indicate that the applicant first came to Australia in 2008.

21. The applicant has also provided documents relating to his Indonesian citizenship and marriage and an Australian bank statement in his name. He has not provided further evidence about his medical situation.

22. The Tribunal has considered all the evidence before it about the applicant’s circumstances. The Tribunal is prepared to accept that the applicant is being treated for knee pain. In considering whether the applicant genuinely intends to stay temporarily in Australia, for the following reasons the Tribunal is of the view that the evidence indicates that he intends to remain indefinitely or permanently in Australia. The evidence indicates that the applicant is married and he lives in Australia with his wife and his son, who has now acquired Australian citizenship. The applicant has lived permanently in Australia since 2010 and has spent more than 10 years in Australia as an unlawful non-citizen. The applicant himself in correspondence to the Department has acknowledged that his visa application will be refused and he wishes to seek Ministerial Intervention. The applicant’s lawyer has informed the Department that the applicant has instructed him that he intends to continue residing in Australia with his Australian citizen child. The applicant’s lawyer has informed the Tribunal that the applicant and his wife intend to seek Ministerial Intervention and they have been advised by him that their application for review will not be successful, but it is a necessary step in the process. Based on the evidence before it, the Tribunal finds that the applicant does not have strong incentives to depart Australia and return to Indonesia and that he does not intend to stay temporarily in Australia if the visa is granted.

23. Based on the evidence before it, for the reasons explained above, the Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily in Australia. The Tribunal considers that the applicant intends to remain indefinitely or permanently in Australia, that he has strong incentives to do so, and that he is using the Medical Treatment visa pathway as a means to achieve this, including by seeking Ministerial Intervention.

24. The Tribunal’s findings above that the applicant has complied with past visa conditions and that he will comply with the conditions attached to a Medical Treatment visa do not outweigh the Tribunal’s concerns about whether he has a genuine intention to stay temporarily in Australia.

25. Therefore, the Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

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

    Conclusion

27. 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.

    Referral to the Minister

28. The applicant has indicated that he intends to apply for consideration of his case by the Minister pursuant to s 351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

29. The applicant has not specifically requested the Tribunal to refer his case and has not made submissions in support of the referral, although the Tribunal understands the reason would primarily relate to the fact that he has a child who is now an Australian citizen.

30. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister himself.

    DECISION

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

    Rachel Da Costa
    Member