Ismail (Migration)

Ismail (Migration) [2021] AATA 2646 (9 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zarif ISMAIL
CASE NUMBER:  1921044
HOME AFFAIRS REFERENCE(S):          BCC2019/2987530
MEMBER:Nathan Goetz
DATE:9 June 2021
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 June 2021 at 11:01am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – applicant is not in Australia – absence of medical documentation – no evidence to a diagnosis was made –adverse migration history– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 360, 362
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

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 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 identifies as a 54-year-old male citizen of Malaysia.
On 3 June 2016 the applicant arrived in Australia holding an electronic travel authority visa.
Ob 24 November 2016 the applicant applied for a protection visa. On 8 March 2017 this was refused. On 15 March 2017 the applicant applied to the Tribunal for a review of the refusal decision. On 7 November 2017 the applicant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal decision. On 1 August 2018 the Federal Circuit Court dismissed the judicial review application. On 22 August 2018 the applicant applied to the Federal Court of Australia against the judgment of the Federal Circuit Court. On 18 February 2019 the Federal Circuit Court dismissed the review application. On 18 March 2019 the applicant applied to the High Court of Australia against the judgment of the Federal Court. On 15 May 2019 the High Court of Australia dismissed the application.
During the applicant’s time in Australia, he had been an unlawful non-citizen for two months and 25 days.
The applicant applied for the medical treatment visa on 12 June 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 (Cth) (the Regulations). On 15 July 2019 the delegate refused to grant the medical treatment visa. The delegate was not satisfied that the applicant met cl.602.215. That is to say, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the medical treatment visa is granted.
On 31 July 2019 the applicant applied to the Tribunal for a review of the refusal decision.
On 10 February 2020 the applicant departed Australia.
The Tribunal considered the information it had but was not able to make a decision favourable to the applicant.
On 24 May 2021 the Tribunal wrote to the applicant and invited him to appear at a 15-minute Tribunal hearing commencing at 10:45am on 9 June 2021 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review: s.360(1). The hearing invitation advised the applicant of the potential consequences of his failure to appear at the Tribunal hearing. The Tribunal arranged for the Tribunal hearing to occur by telephone.
At 10:45am on 9 June 2021 the Tribunal called the applicant on the telephone number that had been provided in his review application form so that he could appear at the Tribunal hearing. The telephone call was not successful. Accordingly, the applicant failed to appear at the Tribunal hearing.
Given that the applicant applied for the medical treatment visa almost two years ago, that the applicant provided no further information to the Tribunal since lodging his review application, and that the applicant did not respond to correspondence sent to him by the Tribunal in April 2021, the Tribunal determined that the appropriate course for this review application is for the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear at the Tribunal: s.362B(1A)(a). The Tribunal waited until the end of the allocated hearing time before making a decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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 medical treatment visa is granted.
Is the applicant unfit to depart Australia?
Before determining whether the applicant meets cl.602.215, the decision-maker must determine whether cl.602.212 is met by the applicant. If cl.602.212 is met by the applicant, then cl.602.215 is not required to be met by the applicant.
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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
While the Tribunal accepts that the applicant is aged over 50 years, there is no evidence that the applicant is in Australia, that he 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 that visa, or that he is medically unit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.
Accordingly, the Tribunal is not satisfied that the applicant meets cl.602.212.
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.
The applicant claims in his visa application form that he has been ‘suffering from anxiety and depression’ and that he is ‘having treatment.’ Form 1507 was attached to the visa application form and was completed by a medical practitioner who declared on 11 June 2019 that he had examined the applicant and that the treatment information was a drug of 20mg and daily counselling. The treatment was to occur at the medical practice of ‘Tom Jones.’ A report dated 11 June 2019 was submitted from Tom Jones who identifies as a treating psychologist. Mr Jones wrote that the applicant saw him the day of the report on referral from his general practitioner and had been requested to complete a report on an urgent basis. Mr Jones noted that the applicant complained of depression triggered by missing his parents in Malaysia and the recent death of his father-in-law. Mr Jones noted that the applicant ‘recommenced’ antidepressant medication which was helpful to him when he last used it two and a half years ago. The report noted that the applicant said that the applicant could visit Mr Jones in one month to review his mood.
Apart from this one report from almost two years ago, there is no evidence that the applicant was actually suffering from depression and anxiety. No evidence to a diagnosis was made
. The suggestion of depression and anxiety appears to be from self-referral. There is no evidence that the applicant followed up with the proposed visit for a month after the attendance on Mr Jones. For all the Tribunal knows, the applicant may have visited his general practitioner and Mr Jones on 11 June 2019 and never been heard from again.
The Tribunal is not satisfied that the applicant had the medical condition he claimed or that he continued to receive any medical treatment. When coupled with the applicant’s migration history as outlined above, the Tribunal is not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment. Rather, the Tribunal is satisfied that the applicant lodged the medical treatment visa to maintain residency in Australia that had been denied to him through the refusal of his protection visa application. The fact that the applicant has subsequently left Australia does not establish that he genuinely intended to stay in Australia temporarily for medical treatment.
Accordingly, the Tribunal is not satisfied that applicant meets cl 602.215.
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.
Nathan Goetz
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).

[2021] AATA 2646

9 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction