Hayat (Migration)

[2020] AATA 3565

Hayat (Migration) [2020] AATA 3565 (24 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sikander Hayat

CASE NUMBER:  1907025

DIBP REFERENCE:  BCC2019/1062560

MEMBER:Rosa Gagliardi

DATE:24 July 2020

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 24 July 2020 at 4:33pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – unfit to depart – genuine temporary entrant – depression and anxiety – immigration history – motivation to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

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 Immigration on 22 March 2019 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 March 2019. 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).

3. The delegate refused to grant the applicant the visa because the applicant had not demonstrated that he genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted and did not meet the requirements of cl.602.215(1) and (2) and cl.602.212.

4. On 10 June 2020 the Tribunal wrote to the applicant at an authorised email address (through his migration agent) provided by him for the purposes of the review, to invite him to a hearing to have been held on 23 July 2020 at 11.30 EST.

5. The Tribunal also advised that to help slow the spread of COVID-19 (coronavirus), the AAT has not been holding face to face (in person) hearings since Monday, 23 March 2020 and is currently closed to all visitors until further notice.  As the Tribunal is not holding in-person hearings, the AAT was arranging for the applicant to appear by telephone. The applicant was advised that the Tribunal would call at the specified date and time. 

6. The applicant did not respond to the Tribunal’s hearing invitation.  The Tribunal, therefore, followed up with the applicant’s migration agent to determine whether the applicant would be availing himself of the opportunity to put forward his case at a hearing.  On the morning of the scheduled hearing, the migration agent instructed that the applicant did not wish to attend the hearing and that the Tribunal should proceed to make a decision on the on the material before it.

7. The Tribunal has been provided by the applicant a copy of the Departmental decision for the purposes of 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.

10. The Tribunal’s inquiry involves making an assessment about:

    ·whether or not the applicant meets cl.602.212(6) (medically unfit to depart); and

    ·if not, whether or not 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).

11. The first limb of the Tribunal’s inquiry, therefore, is whether the applicant meets cl.602.212.

    Is the applicant unfit to depart Australia?

12. 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.

13. The Tribunal has limited information before it that the applicant is physically or otherwise 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 such, the requirements in cl.602.212(6) are not met.

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

14. 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). As the Tribunal is not satisfied on the basis of the information before it that the applicant is medically unfit to depart Australia, it must assess the applicant against cl.602.215.

    cl.602.215

    (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.

15. Clause 602.215 in Schedule 2 of the Migration Regulations is a criterion that must be satisfied. That is, that the decision-maker is required to be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

16. In assessing whether the applicant satisfies clause 602.215 a decision-maker is required to have regard to the following:

    ·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 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 living in their home country that is, does the applicant have more close family members living in their home country, than in Australia.

17. The applicant’s migration history (as set out in the Departmental decision is as follows:

    ·He arrived in Australia as the holder of a Student (subclass 573) visa;

    ·On 1 February 2016 the applicant lodged an application for Temporary (Skilled)(subclass 457) which was refused on 4 November 2016.  The Department’s decision states of the applicant, “You have unsuccessfully sought various avenues of review of the refusal decision including judicial review”;

    ·The applicant currently holds a bridging visa; and

    ·During his time in Australia the applicant has been an unlawful non-citizen for 14 days.

18. The applicant lodged the Medical Treatment visa subject of this review on 1 March 2019. 

19. The reasons submitted for the applicant’s continued stay in Australia at the time of application was that he wanted to remain in Australia, ‘until further notice’ to seek medical treatment for ‘depression and anxiety.  A Form 1507 was provided in support of the application confirming that he was seeking medical treatment in Australia.

20. In support of his application the applicant submitted a report by his General Practitioner, dated 22 February 2019, stating the applicant was suffering depression, anxiety, low self-esteem, poor sleep, early morning wakening, irrational fears, panic attacks, teary, and “No compulsive behaviours.  No delusions. No hallucinations.  No suicidal thoughts.  Stressed++.  Issues with daughter’s medical condition.  Unable to clear medical to stay in Australia”.  The applicant also had a history of Thalassaemia minor and Vitamin B deficiency.  The report also indicates that the applicant was being treated with Pristiq for depression.

21. The Department made its decision on 22 March 2019, some 16 months ago.  At a hearing the Tribunal would have liked to ask the applicant how the treatment of his conditions was progressing and whether he had availed himself of counselling or psychiatric treatment to assist with his conditions.  As at the time of writing this decision, the Tribunal has very little information before it about whether the applicant has any life-threatening condition which must be treated in Australia, even though the Tribunal accepts that he suffered depression and anxiety, and other ailments, in February 2019. 

22. Had the applicant availed himself of a hearing, the Tribunal would have explored with him whether, if he continued to suffer from depression and anxiety at time of decision, he could not seek appropriate treatment in his home country. 

23. Given the Tribunal’s questions about the applicant’s current condition, and given the limited medical information before it regarding the trajectory of his symptoms, the Tribunal has difficulty being satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, to seek medical treatment.  There is also limited information before the Tribunal that the applicant has a life-threatening condition that requires treatment in Australia specifically.

24. Moreover, the Tribunal is concerned that the applicant appears to have pursued avenues to remain in Australia on a longer-term basis even though he was unsuccessful on review, including judicial review.  While the Tribunal does not consider that exercising rights of review is of itself adverse to the applicant’s case, it does at least demonstrate that the applicant has an intention to try to remain in Australia into at least the medium term.  As such, it is reasonable for the Tribunal to have questions as to whether this Medical Treatment visa might not be being sought by the applicant to maintain ongoing residence in Australia.

25. The Tribunal also notes that the applicant has remained in Australia as an unlawful non-citizen for a total of 14 days.  At a hearing the Tribunal would have liked to ask the applicant about the circumstances in which he became unlawful, as without further information, the applicant’s conduct would tend to show he has been prepared to be in Australia regardless of whether her has lawful authority to do so. 

26. In all, on the basis of the information before it, the applicant’s migration history has demonstrated a strong motivation for the applicant to remain in Australia, currently calling into question whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

27. Other matters that would have been covered at a hearing would have included whether the applicant has abided by any conditions imposed on his visas, including his Bridging visa/s.

28. The Tribunal has limited information about the personal circumstances of the applicant in terms of the membership of his family, and whether familial bonds would provide an incentive for him to return to his home country at the end of the proposed stay.  These are all matters that the Tribunal would have raised with the applicant at a hearing had he attended. 

29. Relevantly, it is not for the Tribunal to make his case for him.  It is for the applicant to provide as much detail as possible against the relevant criteria to enable the Tribunal to be satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

30. On the basis of the limited material before it, and given the Tribunal’s findings above, cl.602.215 is not met.

31. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

32. 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

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

    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).