Hassan (Migration) - [2023] AATA 1861

Hassan (Migration) [2023] AATA 1861 (14 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shah Hassan
CASE NUMBER:  2208515
HOME AFFAIRS REFERENCE(S):          BCC2022/1821681
MEMBER:Meena Sripathy
DATE:14 June 2023
PLACE OF DECISION:  Sydney
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 602.212 of Schedule 2 to the Regulations; and
·cl 602.215 of Schedule 2 to the Regulations

Statement made on 14 June 2023 at 10:41am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – pain management from a motor vehicle accident – extended medical appointments – family financial support – substantial compliance with visa conditions – business plans in home country – Traffic Accident Commission payments – family ties in home country – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215
CASES
DET22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 774
El Mir v MICMSMA (No 2) [2021] FCCA 1093
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 2 June 2022 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 23 May 2022. 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 the delegate was not satisfied the applicant genuinely intends to remain in Australia on a temporary basis and does not satisfy cl.602.215.
The applicant appeared before the Tribunal by video hearing on 5 June 2023 to give evidence and present arguments.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 29 year old divorced male, born in Pakistan. He applied for the visa to seek medical treatment from various medical professionals and specialists including physiotherapist, psychologist, psychiatrist, pain specialist and GP and indicated that his costs are covered by the TAC. He sought the visa for the period 22 May 2022 to 22 May 2023. He previously had a subclass 485 vis refused. The applicant submitted documents to the Department in support of his application including Form 1507 and various letters from his treating health professionals providing details of intended treatment together with a cover submission from his representative.
On 24 May 2022 the Department request further information, specifically evidence of his intention to depart Australia and evidence of adequate funds or access to adequate funds, including evidence that his costs were supported by TAC and a current bank statement showing a three month history.
On 26 May 2022 the applicant responded with the following documents:
·Letter from his Migration Agent
·Affidavit from Mr Waqar Badshah, business partner (and nephew) of applicant’s father
·MCB Bank - Transaction history of bank account held by Waqar Ali Badshah
·Statement from Muhammad Gohar Bacha, applicant’s father
·Statutory Declaration by applicant
·Family Registration Certificate
The delegate refused the application in a decision made on 2 June 2022, after considering the information and evidence provided.
The applicant sought review of the decision to the Tribunal on 10 June 2022.
On 15 March 2023 the Tribunal invited the applicant to provide information addressing issues arising in the review, including clauses 602.215 and 602.212. He was invited to provide evidence of medical treatment he has obtained since the visa application was made in May 2022 and evidence of medical treatment he is now obtaining, or intends to obtain in future, the timeframe for that treatment, and evidence of the arrangements in place for the payment of costs related to the treatment and other expenses for his stay in Australia. He was also invited to provide further evidence or information to support that his intention to remain temporarily in Australia for the purpose for which the visa is granted is genuine.
On 23 April 2023 the Tribunal received the following documents from the applicant:
·Letter dated 23 March 2023 from Dr Damien Daniel, Rehabilitation Medicine Specialist who has been treating the applicant since 2 February 2022 for pain management following a motor vehicle accident on 10 September 2019, noting the applicant has been treated at the same clinic, by others, since April 2020. He last consulted the applicant on 23 March 2023, sees him every 4-6 weeks and anticipates that he will need to continue treatment for at least 12 further months.
·Letter dated 20 March 2023 from Dr Shalendra Nath, Deer Park Family Medicine, listing the applicant’s current conditions as a result of a motor vehicle accident on 10 September 2019 for which he is seeking ongoing treatment and providing an opinion that he expects that he requires ongoing treatment from various treating specialists in Australia for at least 2-3 years.
·Report by Dr Ismair Ibrahim, Senior Consultant Psychiatrist dated 1 March 2023. The applicant presented for the first time in February 2022 and has been seen by him on 8 August 2022 and 1 December 2022, but did not attend his appointment in February 2023.
·Affidavit from applicant’s father, notarised 2 March 2023, indicating the applicant is seeking medical treatment in Australia, the declarant confirms his financial position is sound and he can bear all his expenses. He owns a fruit and vegetable market in District Mardan KPK Pakistan, and intends for the applicant to inherit his business and run it in future.
·Statutory Declaration by Mian Bacha, dated 26 March 2023, cousin of the applicant, declaring that he has been supporting the applicant to date, sending money via online transfer and can continue to do so.
·Letter dated 3 April 2023 from TAC confirming that the applicant’s GP and pain specialist are currently funded by the TAC.
·Cover email from the applicant advising he has an appointment with his psychiatrist on 27 April 2023 and will discuss his treatment plan, which will be sent to the TAC for approval.
Tribunal hearing 5 June 2023
At the hearing the applicant provided the following evidence. He lives in shared accommodation with three other people. He is renting and pays $630 per month for his share of rent and bills. He receives financial support from his father through his cousin, and also recently received a lump sum payment in finalisation of his claim for TPD benefits under his superannuation policy. The applicant said he received a net amount of some $22,000 after payment of his legal fees and expects to receive further lump sum payments in future. He said he can provide relevant correspondence about this. Previously he received regular income payments from TAC, but this ceased around September 2022 after three years as per the law relating to TAC’s liability. The Tribunal requested the applicant to provide his bank statements to support receipt of these funds as claimed.
The applicant confirmed he was working until the motor vehicle accident in September 2019, and has not worked since then. The TAC income payments started soon after and were paid for three years.
The applicant confirmed his migration and visa application history as set out above. He confirmed that he completed several courses, the last one was an Advanced Diploma in Leadership and Management completed around the end of 2018. Following this he sought advice and applied for a temporary resident visa Subclass 485 but this was refused. He applied for review to the AAT, and was awaiting that process when the accident occurred. He was planning at that time to seek another student visa. Following the AAT decision in that matter in January 2022, he lodged this application in May 2022.
The Tribunal asked the applicant about the medical treatment he has sought since this application was made. He said he has been regularly seeing a psychologist, psychiatrist, a pain management specialist and his GP. He provided details of the frequency of these appointments and names of his treating doctors. The TAC has covered all of his medical appointments to date. Presently they are seeking further information from his GP about treatment plans for the psychologist and psychiatrist sessions. His next scheduled appointment with the psychiatrist is in August. His GP has scheduled an MRI for him this week and following this will discuss the possibility of surgery on his spine. He last saw his pain management specialist last week and will see him again in around 4 weeks. The Tribunal asked the applicant to provide evidence of upcoming scheduled appointments and evidence of payment of past invoices by TAC.
The Tribunal explained the second issue to consider is whether he genuinely intends to stay in Australia temporarily and this arises given the length of time he has been in Australia and his history of visa applications. It asked the applicant what his plans are. He said he did plan to return home in 2019 to attend two of his siblings’ marriages but they were postponed, then he had his accident and has not been able to travel since. He has not told his parents the full extent of his injuries and state of health since the accident because he does not want to worry them unnecessarily. His long term plan is to take over the family business. His father is getting older and wants him to come home to help him. The only reason he is not returning is because of his health situation. He has difficulty walking, he is losing weight and hair. As soon as he is fit he will return home. There are no financial issues for his family, they have the business and land there.
The applicant confirmed he has his parents, two sisters and two brothers in Pakistan. They all live in the same area. His siblings are married and settled. In Australia he only has a second cousin, Mian Bacha, who lives in Tasmania and is a permanent resident. His cousin’s sister also arrived recently to study and is living with him.
The applicant said he is seeking this visa for a further period of 12 months, acknowledging that he previously requested 12 months which has now passed. He said he is speaking with his GP who is also in contact with his other specialists and they will advise him whether to seek surgery as an option. He needs sufficient time to have this and recover.
The applicant said he is only here for the medical treatment. He is tired of being in Australia now, he is lonely and misses his family. He wats to return as soon as he is fit enough. He wants to access the treatment here that he can because it is better than treatment in Pakistan. When asked if he has explored options for treatment there he said he only discussed this with his cousin and brother and they suggested he stay and get it done here. The Tribunal asked what he would do if the TAC ceased covering his treatment costs. He said he has the lump sum money from his superannuation and also funds from his father. But to date all treatment has been covered by TAC and he has no reason to believe they would not continue to cover it. The Tribunal asked him to provide recent correspondence from TAC regarding these matters.
The applicant reiterated that he is tired of being here now and really only wants to get better and return home. No one in his family has visited him and he cannot travel due to his health situation.
The Tribunal allowed a period of 7 days to provide the information requested during the hearing.
On 6 and 8 June the Tribunal received from the applicant:
·Letters dated 24 April 2023 and 11 May 2023 from Zaparas Lawyers regarding acceptance and settlement of applicant’s Total and Permanent Disablement Claim for $238,800 to be paid in 6 annual support payments across the next 5 years of $39,800 subject to continuing to meet the definition of TPD Assist each year; and recent payment to him of net lump sum amount of $22,085 being the first annual payment (less legal costs).
·Screenshot of his ING bank statement May – June 2023, showing receipt of TPD lump sum of $22,085 on 10 May 2023.
·Screenshots of correspondence with TAC regarding payment of invoices for medical treatment dated 5 June, 2 June, 17 May.
·Screenshots of recent medical appointments, including MRI -Spine on 7 June 2023
·Letter dated 6 June 2023 from Dr Samir Ibrahim, applicant’s treating psychiatrist, confirming next appointment on 3 August 2023 and that his sessions are covered by TAC.
·Email correspondence from Deer Park Family Medicine confirming appointment on 14 June 2023 and invoice to be sent to TAC.
·Appointment advice from Advance Healthcare Clinic for appointment with Dr Damien Daniel, 20 June 2023, covered by Third Party – TAC.
FINDINGS AND REASONS
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 is granted, or whether that requirement does not apply because the applicant is medically unfit to depart.
The Tribunal has considered whether it is necessary in considering cl.602.215, to first identify the relevant purpose of the applicant’s application for the visa which must be a purpose permitted by cl. 602.212, as suggested by the Federal Circuit Court of Australia in the judgement El Mir v MICMSMA.[1] However, a more recent decision of the Federal Circuit Court in DET22 v Minister for Immigration, Citizenship and Multicultural Affairs[2] held that judgment in El Mir does not establish any general principle that in every case the Tribunal is required to consider all of the potentially relevant subclauses within cl 602.212 before considering whether an applicant meets cl 602.215, though it was acknowledged that there may well be cases where this is appropriate or necessary.
[1] El Mir v MICMSMA (No 2) [2021] FCCA 1093
[2] [2022] FedCFamC2G 774
The Tribunal has considered the above judicial authorities and observes, in this case, the applicant was invited to a hearing to give evidence and present arguments arising in the review during which both clauses 602.212 and 602.215 were explained and discussed.
Are the medical treatment requirements met?
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. The only sub criteria in cl.602.212 that appears to be relevant in this case is cl 602.212(2) which 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.
At the time of application, the evidence indicates the applicant sought the visa until May 2023 to seek medical treatment for various injuries arising from a motor vehicle accident in September 2019.
On the evidence referred to above, including the applicant’s oral evidence and documents provided, the Tribunal accepts the applicant suffered a car accident in September 2019 from which he sustained injuries including to his head and back, and he continues to suffer physical and psychological impacts from that incident. He lodged a claim with the Traffic Accident Commission (TAC) and to date has had his medical costs covered by TAC. He received fortnightly income support payments from TAC until September 2022, which he explained was the maximum permitted period of three years under TAC policy. This appears to be consistent with general information located by the Tribunal. [3] In May 2023 he received a net payment of $22,085 in a settlement of a TPD claim under his superannuation policy, which he has used to cover his living expenses. He referred in his oral evidence to being entitled to further annual payments under the settlement of this claim in future years. He has also received financial support from his father. The Tribunal accepts the applicant’s evidence about these matters, on the evidence before it set out above, including correspondence from his lawyers regarding the TPD claim, TAC and his bank statement. It accepts that TAC has covered up to now, and will continue to cover his reasonable medical and related expenses. The Tribunal accepts from the applicant’s oral evidence and recent letters from his treating health professionals that he is seeking ongoing treatment relating to this matter. Specifically, it accepts that he has been referred for an MRI and has scheduled appointments with his GP and psychologist and pain specialists. Therefore the Tribunal is satisfied the applicant is seeking medical treatment and there is sufficient evidence before the Tribunal to indicate that arrangements for the costs of that treatment will be covered by TAC as they have been to date. It also accepts he has adequate funds for his treatment and stay in Australia, given the payments made on settlement of his TPD claim.
[3] How Long are LOEC benefits payable for? - TAC - Transport Accident Commission
Given the above findings, the Tribunal is satisfied the requirements in cl 602.212(2) are met.
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) 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.
As the applicant is under 50 years old, cl.602.212(6) does not apply and accordingly, the requirement in cl 602.215 applies.
In the present case, the visa applicant seeks the visa for the purposes of medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

The Tribunal has considered the matters referred to in cl.602.215. There is no information before the Tribunal to suggest the applicant has any adverse history relating to non compliance with conditions of his last held substantive or bridging visas. The Tribunal is satisfied on the material before it that he has maintained lawful status since his arrival in Australia in December 2013. There is no evidence of that he did not comply with conditions on his substantive or any subsequent bridging visas granted to him. In light of this favourable history, the Tribunal accepts the applicant’s evidence that he has always in the past, and intends to in future, comply with conditions to which the visa is subject. He has provided evidence of his bank statements showing adequate funds to cover his living expenses.
The Tribunal observes the applicant has been residing continuously in Australia for over 9 years now, since his arrival here on a temporary student visa in December 2013. He has made several applications for further temporary visas in this time and indicated that, prior to the motor vehicle accident, he was planning to apply for a further student visa. This visa application history suggests a desire on his part to remain in Australia, albeit temporarily. When this concern was put to him for response at the hearing he stated that he is tired and lonely and misses his family and wants to return home now, but cannot only because of his health circumstances. He has no intention to remain in Australia other than for medical treatment and would not breach visa conditions. He has strong family ties in his home country, specifically his parents and all of his siblings. He has obligations and expectations to take over the family business. The Tribunal is satisfied, on the evidence before it, that the applicant has strong family ties and obligations in Pakistan. He returned there in 2017 demonstrating this connection. On his own evidence his family has a business and land and there are no financial reasons for him to remain in Australia. Conversely, he has minimal family in Australia, with only two cousins who reside in Tasmania, no ongoing employment and there is no information before the Tribunal of any other business or community ties here. He has no history of applying for a permanent visa. The Tribunal is satisfied the above circumstances demonstrate the applicant has stronger incentives to return at the expiry of the visa than to remain in Australia. It is satisfied that he is genuinely seeking medical treatment in Australia and has the necessary funds to stay and to obtain that treatment at this time.
For all of the above reasons the Tribunal is satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl 602.215(1)(a) to (c).
Given the above findings, cl 602.215 is met.
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 602.212 of Schedule 2 to the Regulations; and
· cl 602.215 of Schedule 2 to the Regulations.
Meena Sripathy
Member