Islam (Migration)

Islam (Migration) [2019] AATA 6318 (22 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Md Nazmul Islam
CASE NUMBER:  1813905
DIBP REFERENCE(S):  CLF2018/47962
MEMBER:Louise Nicholls
DATE:22 November 2019
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 22 November 2019 at 3:00pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor)(Class UB) visa – Subclass 602 (Medical Treatment) – applicant does not genuinely intend to stay temporarily in Australia – lack of evidence of medical treatment – lack of evidence applicant intends to stay temporarily in Australia – did not respond to Tribunal correspondence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Bangladesh and is 30 years of age. He arrived in Australia on 20 November 2012 as the holder of a Business (Short Stay) Subclass 456 visa which ceased on 20 February 2013. Thereafter he held a series of bridging visas.
The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 19 April 2018. He provided a photocopy of the biodata page of his Bangladeshi passport issued on 6 January 2018, a completed Form 1507 (Evidence of Intended Medical Treatment) and a Medical Certificate from Dr Lala Kumar, both documents dated 15 April 2018.
On 23 April 2018 a delegate of the Minister for Immigration refused to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.
This is an application for review of that decision and it was lodged on 14 May 2018. The applicant provided a copy of the delegate’s decision record with the application.
On 24 October 2019 the applicant was invited, pursuant to the provisions of s.359(2) of the Act, to provide relevant information.
Noting that the applicant had indicated in his application that he wished to remain in Australia temporarily for the purpose of medical treatment, the applicant was invited to provide the following information;
·When does the medical treatment you have undertaken end, or when is it due to end? Please provide supporting medical evidence.
·Noting that you have been in Australia since 20 November 2012, 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 invitation was sent to the last address provided in connection with the review and the applicant was advised that, if the information was not provided in writing by 18 November 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. There was no response to the invitation. The Tribunal has checked and confirmed that the invitation was sent to the applicant’s last address provided to the Tribunal in connection with the review.
The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review 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 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
At the time of application, 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 Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
Relevantly to this matter cl. 602.215 provides
(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.
The issue in this case is whether the applicant has a genuine intention to stay temporarily for the visa purpose.
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 evidence before the Tribunal indicates that the applicant is present in Australia. His passport and his application for the visa state his date of birth as 10 March 1989. The Tribunal finds that although the applicant is present in Australia he has not turned 50 years of age.
Given the above findings, the requirements in cl.602.212(6) are not 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).
As set out above the applicant does not meet the requirements in cl. 602.212(6). Thus the applicant is required to meet the requirements in cl.602.215.
In the application for the medical treatment visa the applicant stated “not yet known” to Question 15[1] which asks what period of time the applicant wishes to remain in Australia.
[1] Department File CLF 2018/47962 Q 15 f.13
The applicant has provided a Form 1507 signed by Dr Lala Kumar dated 15 April 2018 who stated that the applicant has “bronchial asthma and depression” His treatment consists of medication. The medical certificate provided the same information. No other medical information was provided with the application or in connection with the review.
There is no evidence before the Tribunal that there has been non-compliance with the conditions of his last substantive visa or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa.
The applicant has not provided any current or other relevant evidence which indicates that he is undergoing medical treatment and that he intends to stay temporarily in Australia for that purpose. The Form 1507 provided by the applicant was completed in April 2018. Over 18 months has passed since that document was provided and no updates on treatment have been provided.
The applicant has not provided any other evidence which is consistent with an intention to stay temporarily in Australia for the purpose of undergoing medical treatment.
The evidence before the Tribunal indicates that the applicant has been in Australia since 20 November 2012 and his last substantive visa ceased on 20 February 2013. The delegate’s decision record notes that the applicant applied for a protection visa which was refused and his application for judicial review was dismissed on 21 March 2018 shortly before he made the current visa application.
The Tribunal has considered all relevant matters including the considerations set out in cl. 602.215(1)(a) to (c). While there is no evidence of non-compliance or any evidence of an intention not to comply with visa conditions, the applicant has not provided a specific period of time which he seeks to remain in Australia for medical treatment, his conduct in seeking a permanent visa indicates that he seeks to remain permanently or indefinitely in Australia and he has not provided any medical or other evidence consistent with a genuine intention to stay in Australia temporarily. Overall the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
Given the above findings, cl.602.215 is not met.
Conclusion
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.
Louise Nicholls
Senior 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).

[2019] AATA 6318

22 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice