Kaja (Migration)

Kaja (Migration) [2024] AATA 73 (18 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abdulla Kaja
REPRESENTATIVE:  Mr Munashe RUSAMO
CASE NUMBER:  2212902
HOME AFFAIRS REFERENCE(S):          BCC2020/1453121
MEMBER:Rachel Da Costa
DATE:18 January 2024
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 18 January 2024 at 5:27pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – life-threatening motorcycle accident – applicant convicted of offences – adequate compensation for ongoing medical treatment – exceptional circumstances – bail application required for medical treatment information – relationship with an Australian resident – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, s 65
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 on 18 August 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 29 April 2020. 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 he was not satisfied that the applicant genuinely intends to remain in Australia temporarily and found that the applicant is attempting to use the Medical Treatment visa pathway as a means to maintaining ongoing residence.
CLAIMS AND EVIDENCE
The applicant’s migration and procedural history
Based on documents on the Departmental and Tribunal files and oral evidence from the applicant in the hearing, the relevant background to this matter is as follows.
The applicant is a 29-year-old citizen of Italy and Albania.
As set out in the delegate’s decision, the applicant first arrived in Australia on 10 December 2014 and during the following seven years was absent from Australia for only 181 days. During this period, the applicant held a series of visas, including Working Holiday visas (subclass 417), eVisitor visas (subclass 651), Student visas (subclass 500) and a Medical Treatment visa (subclass 602).
On 8 November 2018, the applicant was involved in a motorcycle accident when he collided with a car. He sustained extensive, life-threatening injuries, including neurological, spinal, respiratory and cardiovascular injuries. The Consent to Judgement in proceedings in the District Court of Western Australia dated 14 July 2021 indicates that the driver of the car was found to be negligent and the applicant was awarded damages of $800,000 plus costs and disbursements.
On 21 December 2018, the applicant applied for a Student visa. He was refused the Student visa and unsuccessfully sought review of that decision in the Tribunal (differently constituted). The Tribunal affirmed the delegate’s decision on 26 September 2019.
On 6 November 2019, the applicant applied for and was granted a Medical Treatment visa which expired on 30 April 2020.
On 29 April 2020, the applicant applied for a further Medical Treatment visa, which is the subject of this application for review. The applicant was granted a Bridging A visa in connection with that application.
On 22 June 2020, a delegate of the Minister refused the application on the basis that the applicant did not have sufficient personal funds to support himself during his intended stay in Australia. The applicant sought review of that decision in the Tribunal.
On 12 April 2022, the Tribunal (differently constituted) remitted the application for the Medical Treatment visa to the Department for reconsideration.
On 28 June 2022, a delegate of the Minister wrote to the applicant inviting him to comment on information about the amount of time he had already spent in Australia and his visa history in the context of the delegate considering whether the applicant was a genuine temporary entrant and would depart Australia if the visa were approved.
The applicant’s representative at the time responded with some information about the applicant’s claimed property ownership in Albania, referred to criminal offences the applicant had been charged with and provided bail details, and stated that planned surgery with Dr Baddour, the applicant’s orthopaedic surgeon, may go ahead.
On 18 August 2022, the delegate refused the applicant’s application for a Medical Treatment visa on the basis of the applicant’s migration history, including the length of time already spent in Australia, and found that the applicant did not genuinely intend to remain in Australia on a temporary basis.
On 2 September 2022, the applicant lodged an application for review of the delegate’s decision with the Tribunal and provided the Tribunal with a copy of that decision. This is the decision under review in this case.
On 19 April 2023, the Tribunal wrote to the applicant (via his representative at the time) inviting him to provide information in writing, including details of the medical treatment he required and when that treatment ended; if the treatment has not ended, evidence of when it is due to end; and evidence which indicates that he has a genuine intention to stay temporarily in Australia for the purpose of the medical treatment.
On 2 May 2023, the Tribunal received correspondence from the applicant’s new representative informing the Tribunal that they had recently been appointed and seeking an extension of time to respond to the Tribunal’s letter. The Tribunal agreed to provide an extension of time to 16 May 2023. The applicant’s representative provided the Tribunal with an updated Appointment of Representative/Authorised Recipient form and a completed Change of Contact Details form in respect of the applicant. The Change of Contact Details form indicated that the applicant was currently in Casuarina Prison, Casuarina, Western Australia (WA).
On 18 May 2023, the Tribunal received the applicant’s written response to the invitation to provide information. This response is referred to in more detail below.
On 12 July 2023, the applicant provided an outline of submissions to the Tribunal with some further documents attached. These submissions and documents are referred to in more detail below.
On 19 July 2023, the applicant provided a document which lists his appointments at Fiona Stanley Hospital clinics since April 2021. It was particularly noted by his representative in her covering email that the applicant attended on 10 May 2023 and 27 June 2023 and that he had forthcoming appointments booked for 15 December 2023.
On 25 July 2023, the applicant provided the same documents provided on 12 July 2023, as well as the Fiona Stanley Hospital appointment list and a letter from his physiotherapist, Mark Brabazon of Back2it Physiotherapy, dated 31 July 2023.
On 11 August 2023, the Tribunal hearing took place. At this time, the applicant and his representative anticipated that the applicant would be released from custody on bail in September 2023 and would therefore be in a position to visit his orthopaedic surgeon, Dr Baddour, and obtain updated medical evidence which the applicant would then provide to the Tribunal. The Tribunal had identified this updated information as being potentially relevant to its decision. On this basis, the Tribunal agreed to adjourn making its decision and requested an update from the applicant by 6 October 2023 on his situation. As discussed below, events have not proceeded as anticipated by the applicant at that time.
On 22 September 2023, the applicant’s representative informed the Tribunal that she was no longer in a position to continue to act for the applicant and new lawyers had been appointed (the current representative).
On 30 October 2023, the applicant’s current representative notified the Tribunal of his appointment.
Written response to the Tribunal’s invitation to provide information
On 18 May 2023, the Tribunal received the applicant’s written response to the invitation to provide information. The response set out the background to the applicant’s medical history following the motorcycle accident and gave an overview of his recent and ongoing medical treatment, which includes surgery by Dr Baddour, outpatient treatment at Fiona Stanley Hospital for urology complications, and physiotherapy for ongoing rehabilitation and pain particularly in the applicant’s lower limbs and back. At this stage, the applicant’s representative indicated that she had not been provided with a clear indication from the applicant as to a possible end date for his treatment regime.
The applicant attached an index and list of documents relating to all the different aspects of the medical treatment he has received and continues to receive. This includes medical reports and letters from various treating professionals, tax invoices and appointment schedules. It runs to over 300 pages. The applicant also provided a copy of a Statutory Declaration made on 31 January 2022, in which he sets out details of the injuries he suffered, the treatment he has been receiving, the extensive efforts he has made with his rehabilitation and his hopes and intentions for the future. Where relevant, this material is referred to in more detail below.
The response also stated that prior to the accident, the applicant was an active professional soccer player and was preparing to study business. He does not have any immediate family who live in Australia. He instructs that he wishes to return to Italy once he has fully recovered, or at least recovered to the fullest extent possible in accordance with the advice of his treating medical professionals.
Pre-hearing submissions
On 12 July 2023, the applicant provided an outline of submissions to the Tribunal with some further documents attached. It is submitted that the applicant is genuinely seeking to obtain medical treatment in Australia and arrangements are in place to carry out that treatment and the treatment is the purpose of his intended stay. The submissions set out the background to the applicant’s situation and attach:
·     An outline of evidence from the applicant dated 12 July 2023;
·     The applicant’s statement of claim (10 June 2020) and the consent to judgement in the District Court of Western Australia (14 July 2021);
·     Schedule of appointments at Fiona Stanley Hospital (provided on 19 July 2023 but incorporated into an updated attachment to these submissions); and
·     Letter dated 31 July 2023 from Mark Brabazon, Physiotherapist, Back2it Physiotherapy (provided on 25 July 2023 but incorporated into an updated attachment to these submissions).
It is submitted that the applicant is having ongoing medical treatment as evidenced by all the documents provided, that no Australian citizen or permanent resident would be disadvantaged if the visa were granted and that due to his compensation payout he has adequate means to support himself financially without difficulty. In relation to the applicant’s genuine intention to stay temporarily, it is submitted that he applied for a Student visa shortly after his accident because his current visa was due to expire, he needed to remain in Australia to continue his recovery and he held a genuine desire to study business at that time. It is submitted that he abandoned his Student visa application and pursued Medical Treatment visas instead after learning he would be entitled to compensation for his injuries to fund his rehabilitation. It is submitted that the applicant has not applied for permanent residence at any time and has sought visas appropriate to his circumstances.
The submissions refer to the Department’s Policy Advice Manual (PAM) for Medical Treatment visas which states that lengthy or rolling Medical Treatment visas are not ordinarily appropriate for applicants who require ongoing and regular treatment for a prolonged period unless exceptional circumstances apply. It is submitted that the applicant is not seeking to remain in Australia indefinitely, but he has stayed because he is following the advice of his health professionals and his particular circumstances with his significant injuries, long-term treatment program, substantial award of damages and commitment to his ongoing rehabilitation, and that this amounts to exceptional circumstances in his case.
In relation to the applicant’s criminal proceedings, it is submitted that the applicant maintains his innocence, intends to appeal and apply for bail, and the Tribunal is not required to determine whether the applicant satisfies PIC 4001 at this time.
The hearing
Given the applicant is in prison, the hearing was conducted using the Microsoft Teams videoconference platform. The hearing was originally scheduled for 19 July 2023, however due to poor sound quality and the lack of a video link from the prison on that day the Tribunal adjourned the hearing with the applicant’s agreement. The hearing was resumed on 11 August 2023 for the applicant to give evidence and present arguments relating to the issues arising in his case. There were no problems with the sound and video quality in the resumed hearing. The applicant speaks fluent English and did not require the assistance of an interpreter.
The applicant was represented in relation to the review and his representative attended the hearings.
The applicant’s legal situation and developments following the hearing
The Tribunal notes that over the course of his Medical Treatment visa applications, the applicant declared to the Department and Tribunal that he had been charged with a number of criminal offences relating to driving and drugs, resulting in fines and a suspended sentence. At the time he lodged his application for review with the Tribunal, he had not spent time in custody.
In May 2023, the Tribunal became aware that the applicant was in criminal custody in Casuarina Prison in WA.
On 5 July 2023, the applicant’s representative (at the time) provided the Tribunal with further information in writing about the applicant’s current criminal proceedings. She stated that on 23 February 2023, a jury convicted the applicant of two offences relating to the sale/supply of methylamphetamine and dealing with the proceeds thereof. He was due to be sentenced on 31 August 2023 and had engaged Senior Counsel to commence preparation of an appeal against the convictions. As noted above, in the Tribunal hearing, the applicant had indicated that he anticipated being released from prison on bail in September 2023. He confirmed he had been in prison since 23 February 2023.
On 4 September 2023, the applicant’s representative wrote to the Tribunal and informed it that the applicant’s sentencing hearing took place on 31 August 2023 and the presiding judge reserved her sentencing decision until 13 October 2023. The applicant’s Senior Counsel advised the applicant that his Notice of Appeal should not be filed until after the sentencing decision. As a result, the applicant’s bail application, which is linked to the appeal, was delayed, and he is unable to arrange a prison visit/examination from Dr Baddour in the interim. This meant that the applicant was unable to provide updated medical evidence to the Tribunal by 6 October 2023 as had been expected.
The applicant’s representative informed the Tribunal that in light of these events, the applicant may not be in a position to provide the new evidence until early 2024, after his appeal/bail application was lodged in court and listed and he was able to secure an appointment with Dr Baddour for an examination. The applicant requested a further adjournment of four to five months. The applicant’s representative noted that one of the Tribunal’s objectives under s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) is to be quick, but this is counter-balanced against the objectives of being fair and just. The applicant’s representative also noted that the delay was beyond the applicant’s control and it was highly unusual for a delay of over six months to take place between the date of conviction and the date of sentence in a criminal case.
In light of this, the Tribunal requested a further progress update by 3 November 2023. On 3 November 2023, the applicant’s current representative provided the Tribunal with updated information as follows. On 13 October 2023, the applicant was sentenced to a term of 10 years immediate imprisonment. He had been transferred from Casuarina Prison to Acacia Prison. He had filed a notice of appeal in the Supreme Court of Western Australia seeking leave to appeal against his conviction. The appeal case was to be filed by 7 December 2023 and then the applicant intended to apply for bail. In light of this, the applicant requested the Tribunal further postpone making its decision in anticipation that the applicant would be granted bail and be in a position to have an appointment for examination by Dr Baddour and resume and complete his rehabilitative physiotherapy.
In light of this information, the Tribunal requested a further progress update by 15 December 2023. On 15 December 2023, the applicant’s representative provided the Tribunal with a further update. He informed the Tribunal that the applicant had hoped to have made a bail application by 7 December 2023 but due to factors beyond the applicant’s control, the applicant cannot make a bail application until 15 February 2024. The orders made by the Supreme Court for the timing of the filing of documents in relation to the application mean that the applicant will not know the prospects or success of his bail application until the end of March 2024. In light of this, the applicant requested a further postponement by the Tribunal in making its decision until the end of March 2024.
On 19 December 2023, the Tribunal responded to the applicant’s representative in writing. The Tribunal noted the information about the further delay and the fact that the applicant will not be in a position to advise the Tribunal of the prospects or success of his bail application until the end of March 2024. The Tribunal also acknowledged that the timing of these matters is not within the applicant’s control. The Tribunal explained that in light of the fact that the hearing in this matter was held in August 2023, the ongoing uncertainty surrounding the timing and potential success of the applicant’s bail application, the potential further delay in securing and attending an appointment with Dr Baddour if the applicant is granted bail, and taking into account the Tribunal’s objectives in the AAT Act, it had formed the view that it would not be reasonable to grant a further postponement until the end of March 2024 for the applicant to provide information.
The Tribunal indicated that in the circumstances, it would not make its decision before Monday 15 January 2024 but may proceed to make its decision in the applicant’s case at any time after that date.
Response to the Tribunal’s letter of 19 December 2023
On 15 January 2024, the Tribunal received a written response from the applicant’s representative making submissions as to why the Tribunal should grant a further postponement in the applicant’s case.
It is submitted that the Tribunal’s objective in s 2A of the AAT Act must be read as a whole and the Tribunal must take an approach that is proportionate to the importance and complexity of a matter, as well as being quick, economical, fair and just. It is submitted that that the central question in this case is whether the applicant still needs medical treatment and rehabilitation and that the answer to this is contingent on his ability to be granted bail. If he is granted bail, he will have the review with Dr Baddour who can provide the Tribunal with more information about the applicant’s medical needs.

It is submitted that the primary purpose of the request for a postponement of the Tribunal’s decision was for the Tribunal to wait for the applicant’s bail application, which would give the Tribunal important information about the applicant’s need for medical treatment in Australia. A successful bail application would enable the applicant to obtain the information from Dr Baddour. It is submitted that the Tribunal’s concern and refusal of the postponement is centred around the uncertainty of timing and success of the applicant’s bail application, but this uncertainty is the reason why a postponement ought to be granted as the outcome of the bail application is crucial to the Tribunal’s decision.
It is submitted that the bail application should be the primary driver of the Tribunal’s decision-making as it determines whether or not the applicant will be able to receive medical treatment. It is submitted that the applicant’s matter in the Tribunal and his criminal proceedings should operate in tandem and both proceedings are reliant, in part, on each other’s outcomes. If the applicant is granted bail, he will need a visa to be released into the community and being granted bail means he will be able to see Dr Baddour. The matters are intertwined and should be managed in tandem. It is submitted that the appropriate and proportionate response would be to postpone making a decision on the applicant’s Medical Treatment visa application until the applicant has an outcome on his bail application or has at the very least received an assessment of the prospects of his bail application. It is submitted that the applicant’s matter is complex and cannot be summarily dismissed because of circumstances beyond the applicant’s control, that is, the uncertainty around his bail application.
It is submitted that the “prospects for/outcome of a bail application will only be available to the Tribunal in March 2024. Therefore, the Tribunal should postpone its decision until March 2024.” It is submitted that the applicant is merely requesting a further postponement of two months and this is not likely to prejudice the Tribunal. This would give the applicant the opportunity to provide the Tribunal with the information necessary to make its decision.
It is also submitted that if the Tribunal does not postpone its decision and the applicant is granted bail, he would not be able to access the medical treatment he needs as he will not have a visa to be released into the community. This would be an unjust circumstance resulting from the Tribunal not delaying its decision for two months.
The submissions recommend the Tribunal postpone making its decision for a further two months as not to do so would be unjust on the facts, and the complexities of this matter require the Tribunal to be quick and economical but also proportionate, and a proportionate response would be to postpone a decision until a decision has been made on the applicant’s bail application.
The letter containing the written submissions attaches a letter dated 15 January 2024 from Ms Karrie Louden who is the instructing solicitor in the applicant’s appeal in the Western Australian Court of Appeal against his conviction for possession of methylamphetamines and money laundering. Ms Louden explains the timeline for the appeal which was lodged on 12 October 2023, and dates for the filing of various documents. She states that the appellant’s case (the appellant in that case is the applicant in this case) is due to be filed on 15 February 2024 and they will not be in a position to make an application for bail until after that date. She states that after 15 February 2024, a date will be set for the respondent’s answer to be filed and a date set for the hearing of the appeal. She cannot provide any more detail about possible hearing dates as the Court will set those dates in due course.
The Tribunal has considered the applicant’s submissions about why the Tribunal should grant a further postponement of two months, until the end of March 2024, before making its decision on the applicant’s Medical Treatment visa application. Its consideration and decision are set out below.
At the time of the Tribunal hearing in August 2023, the applicant explained that he was supposed to see Dr Baddour in March 2023 to discuss the possibility of further spinal surgery but as he was taken into custody around that time he had not been able to see the doctor. He had not yet been sentenced at the time of the Tribunal hearing and the applicant requested the Tribunal to postpone making its decision for six to eight weeks to enable him to lodge his notice of appeal, obtain bail and see Dr Baddour to obtain the additional medical opinion. The Tribunal agreed to the postponement on the basis that it appeared the applicant would be able to meet this timeframe and the report from Dr Baddour could be obtained within a reasonable period of time. The events following the hearing, including the delays in the applicant’s sentencing and his ability to apply for bail are set out above. Since the hearing, the applicant has been sentenced to 10 years in prison.
While the applicant submits that he is merely requesting a further two month postponement from the Tribunal to March 2024, this is against the background of several postponements that have already been granted since August 2023 and the anticipated timing of the applicant’s bail application being pushed out a number of times, with the current timing for making the application being after 15 February 2024 according to Ms Louden’s letter. The applicant submits that the “prospects for/outcome of a bail application” will not be available to the Tribunal until March 2024, although it is not clear how this timeframe is arrived at and it is not mentioned in Ms Louden’s letter. In the Tribunal’s view, based on the evidence before it, the timing of a decision on the outcome of the applicant’s bail application is uncertain and, of course, so is the outcome of the bail application itself. It is submitted that the appropriate and proportionate response by the Tribunal would be for it to postpone making a decision on the applicant’s Medical Treatment visa application until the applicant has an outcome on his bail application or has “at the very least received an assessment of the prospects for his bail application.” The applicant has not provided further detail about receiving advice on the prospects of his bail application, including whether such advice has been sought, from whom and when it might be provided, so in the Tribunal’s view the circumstances around this are uncertain as well.
It is submitted that the bail application should be the primary driver of the Tribunal’s decision-making as it determines whether or not the applicant will be able to receive medical treatment. It is submitted that the applicant’s matter in the Tribunal and his criminal proceedings should operate in tandem and both proceedings are reliant, in part, on each other’s outcomes. The Tribunal does not accept this submission. In the Tribunal’s view, the primary driver of the Tribunal’s decision-making in this case are its obligations under the AAT Act and the Migration Act. The Tribunal accepts that if the applicant is granted bail, which is not certain, he will seek an appointment with Dr Baddour to discuss further treatment. Whether Dr Baddour will recommend further treatment is unknown at this stage. Dr Baddour’s most recent opinion from March 2022 on the applicant’s situation is discussed and considered in detail below, but the Tribunal notes that at that time Dr Baddour did not recommend further surgery.
The Tribunal acknowledges that the uncertainty around the timing and outcome of applicant’s bail application is beyond his control due to his incarceration, but this does not mean the only reasonable course of action open to the Tribunal is to continue to postpone making its decision until the outcome of the bail application is known. To date, the Tribunal has been prepared to grant the postponements as it appeared that the timeframes involved fell within the scope of what the Tribunal considered to be reasonable in all the circumstances. However, the current request for a further postponement would mean the Tribunal would be delaying making its decision for at least seven months after the hearing and possibly more. This would be in circumstances where, for the reasons set out above, the Tribunal is concerned that the timeframe for the bail application is uncertain and could be pushed out even further, and then, if the applicant is granted bail, which is by no means certain, he would then have to secure an appointment for examination with Dr Baddour and obtain and provide a further report from Dr Baddour, all of which would take even longer.
The Tribunal has considered the applicant’s submission that if the Tribunal did not postpone its decision and the applicant were granted bail, the applicant would not be able to access the medical treatment he needs as he will not have a visa to be released into the community. In the Tribunal’s view, the applicant’s circumstances, including the uncertainty around if and when he will be granted bail and the existence of his criminal convictions, means that his future visa situation is speculative and may not unfold in the way the submissions suggest. For example, even if the Tribunal postpones making its decision and the applicant is granted bail given his current criminal history there is the possibility that the applicant’s Bridging visa could be cancelled by the Department.
In the Tribunal’s view, for the reasons explained above, the Tribunal considers that proceeding to make its decision on the applicant’s application for a Medical Treatment visa now, rather than granting a further postponement, is reasonable. In reaching this view, the Tribunal has taken into account all the evidence before it, the applicant’s submissions and the Tribunal’s objective as set out in s 2A of the Act. The Tribunal’s objective requires it to provide a mechanism of review that is, amongst other things, fair, just and quick and is proportionate to the importance and complexity of the matter. The Tribunal considers that in this particular case which involves an application for a Medical Treatment visa, which is a type of visitor visa, admittedly with circumstances complicated by the applicant’s imprisonment and criminal proceedings, it is reasonable for the Tribunal not to grant a further postponement of its decision. The Tribunal does not accept that its decision not to further postpone making its decision is unjust or unfair on the facts.
Accordingly, in all the circumstances and for the reasons set out above, the Tribunal has decided to proceed to make its decision on the applicant’s application for review based on the evidence currently before it.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Based on the evidence before it, including information provided by the applicant to the Department and the Tribunal, the Tribunal finds that the applicant was born in 1995 which means he is 29 years-old and has not turned 50. Given this finding, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.
In the present case, the visa applicant seeks the visa for the purposes of medical treatment or consultation in Australia. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.
The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. The last substantive visa held by the applicant was his previous Medical Treatment visa that ceased on 30 April 2020. Since that time, the applicant has held a bridging visa. There is no evidence to suggest that the applicant did not comply with the conditions of his last substantive visa or with the conditions of the subsequent bridging visa he has held.
The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject. Medical Treatment visas are subject to condition 8101 (no work), 8201 (no studies) and may be subject to condition 8503 (the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia). The applicant has significant physical impairment as a result of his accident and has received a substantial amount of money in compensation. He also gave evidence that he has some investments. The Tribunal finds that the applicant is financially independent and if the visa is granted, he will comply with condition 8101. The applicant explained that when he applied for a Student visa after his accident, he was injured and did not have many options and thought studying was the best option but he really just wanted to be able to remain in Australia for his treatment. The evidence before the Tribunal does not indicate that the applicant intends to study in Australia if he is granted the visa and the Tribunal accepts that the applicant will comply with condition 8201.
The Tribunal has considered other matters relevant to assessing the applicant’s intention. In the Tribunal hearing, the Tribunal discussed with the applicant the purpose of a Medical Treatment visa and explained the requirement that an applicant must have a genuine intention to stay temporarily in Australia for the purpose of the visa, and explained that it is not a permanent visa. The applicant said he was aware of this.
In the hearing, the applicant gave evidence about his background and personal circumstances. The applicant is a citizen of Italy and Albania. He has undertaken various jobs in Australia. Most recently before the accident he had his own electronics business and played soccer at a semi-professional level, but no longer owns the business. After the accident he was part owner of a coffee shop but he does not own that business anymore either. Before being imprisoned, the applicant lived in an apartment in Perth. For the last two-and-a-half years he has been in a de facto relationship with an Australian woman. It is a serious relationship and they have serious intentions together. She works as a secretary in a hospital and owns a house. The applicant’s sister is currently in Australia and lives in the apartment where the applicant used to live before going to prison. She arrived about three years ago after the accident to support the applicant. She applied for a Student visa but that was refused. He is not sure what she is doing now. In Italy, the applicant has his parents and other relatives. His parents have been to visit him several times since the accident and he is in contact with them a couple of times a week. The applicant owns a house and land in Albania but he does not have any evidence of this.
There is a great deal of medical evidence before the Tribunal about the applicant’s injuries and the multi-faceted rehabilitation regime he has been following. The Tribunal accepts this evidence. The Tribunal also acknowledges that the applicant’s treatment regime has been interrupted by his imprisonment and prior to this, he appears to have made very good progress with his rehabilitation.
In his outline of evidence dated 12 July 2023, the applicant sets out his range of ongoing medical treatment/rehabilitation areas which essentially fall into three categories, which are orthopaedic surgery, physiotherapy and urology.
In his outline of evidence, the applicant states that Dr Baddour has performed several surgical procedures on his spine. The applicant last saw Dr Baddour in March 2022 in relation to the possibility of removing more implants and bolts from his spine. At the time, Dr Baddour was reluctant to remove any further implants due to the risk of nerve pain. The applicant states that Dr Baddour recommended the applicant continue with more physiotherapy to build his strength and Dr Baddour would review the situation in a year. The letter from Dr Baddour to Dr Ip (the applicant’s General Practitioner) dated 23 March 2022, following Dr Baddour’s appointment with the applicant, states that the applicant has made very good progress and the applicant is interested in removing some of his spinal implants but Dr Baddour has cautioned against this as it could introduce pain. Dr Baddour expresses the view that the applicant “should concentrate on his physical training and at this point not undergo any further lumbar surgery”.
In his outline of evidence, the applicant explains that he has been seeing the same physiotherapist, Mark Brabazon, since April 2020. His physiotherapy program is targeted at helping with a number of impairments and involves three therapy sessions per week. The program correlates with the rehabilitation goals the applicant has discussed with Dr Baddour. In his letter dated 31 July 2023, Mr Brabazon, explains the applicant’s physiotherapy regime to date and says that some of the applicant’s injuries and limitations are still extensive and require a lot more physiotherapy input. Mr Brabazon refers to Dr Baddour’s advice about the applicant working on strength and conditioning before revisiting the surgical path and expresses the view that the applicant will be able to enhance his outcomes, including potentially via surgery in the future, if he is given the opportunity to continue with his treatment program. Mr Brabazon states that until the time the applicant was taken into custody in early 2023, he was training with him three times per week. He commends the applicant for his dedication to his rehabilitation and hopes that with the time away from the clinic his condition has not deteriorated. Mr Brabazon expresses the view that it is very important that the applicant maintains access to the many medical professionals who have looked after him “should there be a need to consider further interventions around his spinal cord injury”.
In his outline of evidence, the applicant explains that he continues to have appointments with the URO Spinal Urology Clinic at Fiona Stanley Hospital for the treatment and management of bladder dysfunction. Records show he attended most recently on 21 December 2022 and 27 June 2023. The applicant states that the main issue is that he cannot completely empty his bladder without the use of a catheter. He requires ongoing monitoring and management to try to continue to improve this situation and he takes medication that also helps. The applicant has consultations every six months, and a phone call every three months, with the Fiona Stanley Hospital Sexual Rehabilitation Clinic. Records show the applicant had an appointment booked with the URO Spinal Urology Clinic on 15 December 2023, but the Tribunal has not been specifically informed about whether he attended that appointment in person or by video or telephone or at all, or any outcome of this appointment.

In his outline of evidence, the applicant states that he has been receiving medical treatment the entire time his Medical Treatment visa application has been on foot. He has remained in Australia because he has been under such good care from all his medical specialists. They all know about his injuries, needs and goals and are working towards him achieving the best recovery possible. He knows he will probably suffer from a permanent disability for the rest of his life but while he is making such good progress he wants to continue to receive his treatment in Australia until he has “recovered to the fullest extent that [he] can, according to the advice of the specialists who have been managing [his] medical conditions all this time”.
In the hearing, the applicant gave evidence that since being in prison, he has been able to continue attending urology appointments at Fiona Stanley Hospital and he has physiotherapy sessions once a week in prison but not with Mr Brabazon. In relation to Dr Baddour, the applicant said that he hoped to see Dr Baddour soon to get advice on the possibility of further surgery. The Tribunal expressed its concern at the potentially open-ended timeframes applying to the applicant’s medical treatment. It pointed out that in his Medical Treatment visa application he said he required the visa for one year, up to 30 April 2021, but it is over two years later and he is still in Australia having treatment. The applicant responded that during that time, his legal matters were going on and his treatment didn’t end in 2021 because he was continuing to improve. He was forced to stay in Australia because he was in a bad condition.
The Tribunal asked the applicant how long he wished to remain in Australia for medical treatment. He responded that it depends on his appointment with Dr Baddour. He wants to have further surgery to fix his “tilt” and then have rehabilitation with his physiotherapist and if he can do that, he will have achieved everything he can. If he can be granted a Medical Treatment visa for 12 months he will be happy with what he has achieved and there is probably nothing more he can do in Australia. The Tribunal notes that in his letter dated 9 March 2022, Dr Baddour refers to the applicant’s tilt, which he describes as a “coronal shift to the right-hand side.” Dr Baddour says the applicant asked if anything could be done to improve this and Dr Baddour considers it to be “mainly a cosmetic issue”. As noted above, in his letter dated 23 March 2022, Dr Baddour states that the applicant has made very good progress and the applicant is interested in removing some of his spinal implants but Dr Baddour has cautioned against this as it could introduce pain which is currently not an issue for the applicant. Dr Baddour expresses the view that the applicant “should concentrate on his physical training and at this point not undergo any further lumbar surgery”.
The Tribunal expressed its concern about the lack of a plan for this possible surgery and the open-ended timeframes around it. The applicant stated that as soon as he is released from prison, he will seek an appointment with Dr Baddour to see if he can have the surgery and then, if the surgery will go ahead he can estimate the time that will be needed. At the moment, he can’t give a timeframe for it because he doesn’t know. The applicant reiterated that he is not quite where he wants to be in terms of his rehabilitation and even if he is not going to have the surgery, he knows that there is still some improvement to be made and a year will be the maximum he needs to be stable and able to return to Italy.
The Tribunal put to the applicant that his migration history and length of time spent in Australia was a concern. He responded that he never intended to stay in Australia despite his business here and playing soccer. Before the accident happened he was ready to move back to Italy, but the accident changed his plan. The applicant’s representative submitted that the applicant had applied for the appropriate visa at each point although he was “optimistic” when he applied for his Student visa and probably should have applied for a Medical Treatment visa at that time. She also submitted that the application for the visa is genuine, the applicant could have gone back to Italy after the first Medical Treatment visa but by July 2021 he had received money to cover his treatment costs and chose to remain in Australia to continue his treatment with the medical team he trusted. Unfortunately, the applicant can’t see Dr Baddour while he is in prison and the timing of the applicant’s bail application is beyond his control. The Tribunal notes that at this point, the expectation was that the applicant’s notice of appeal, bail application and appointment with Dr Baddour would take place within six to eight weeks of the hearing and the submissions were made on this basis.
The Tribunal asked the applicant what evidence he had to indicate that he had a genuine intention to stay temporarily in Australia for the purpose of medical treatment. He responded that he came to Australia when he was 19 and never intended to stay. He ended up staying longer because of friends, his business and his partner at the time but he never saw Australia as a place to live and raise a family. Before the accident he was ready to transfer his business and continue it in Italy. He has an Australian partner now and she is happy to live in Italy. She has met the applicant’s parents. He thinks Australia does not have much more to offer him. He is ready to return to Italy and Albania and develop business ideas there and he owns some land in Albania. The lifestyle in Italy is better, it is close to Europe and Albania, the cost of living lower and he will have limited opportunity to work in Australia. He added that his partner seems keen to move to Italy and his sister does not intend to stay in Australia. He just wants to finish his treatment and take care of the last steps of his journey. The applicant’s representative added that the applicant has disclosed his long-term partner, he has not applied for a Partner visa, he just wants to see Dr Baddour, determine whether or not he will have further surgery and rehabilitation and have his final appointments.
The Tribunal appreciates that the applicant is in a difficult position with his medical treatment due to his incarceration. Even if the Tribunal is prepared to accept that the applicant intends to return to Italy once his rehabilitation is at a level he considers to be stable, as discussed above, the Tribunal has concerns about the speculative details and timing involved.
The applicant has given evidence that the key medical treatment he wants to have in Australia before he departs is further spinal surgery to improve his “tilt”, followed by rehabilitation with Mr Brabazon after surgery. The last time Dr Baddour saw the applicant in March 2022, he expressed reservations and said the applicant should focus on his physical training and not undergo further surgery, which he described as “mainly a cosmetic issue”. The applicant intends to see Dr Baddour again to revisit this because he wants to have the surgery if it is possible, having done further rehabilitation in the meantime. However, due to the applicant’s legal situation it is not possible to know when (or if) he will be able to see Dr Baddour again in the foreseeable future or what Dr Baddour’s opinion about further surgery will be at that time. In the meantime, the applicant’s evidence at the time of the hearing was that he has one physiotherapy session per week in prison (not with Mr Brabazon) and is able to continue with his urology appointments at Fiona Stanley Hospital. The applicant gave evidence in the hearing that within 12 months he thinks he would be able to achieve a level of overall rehabilitation that he would be satisfied with and have his last appointments, however, this is the applicant’s own estimate and opinion about the timeframe and is not supported by objective medical evidence from his treating medical practitioners. It was also the applicant’s view expressed at a time when he was hopeful that he was going to be granted bail within the coming six to eight weeks and could therefore have resumed his regular sessions with Mr Brabazon.
As the applicant’s representative observed in his update letters to the Tribunal dated 3 November 2023 and 15 December 2023, due to the applicant’s circumstances it is difficult for the applicant to provide a timeline as to when his treatment will conclude. The Tribunal acknowledges this. In the Tribunal’s view, the scope of the potential treatment is also speculative at this stage.
A Medical Treatment visa is a type of visitor visa which is designed for persons to stay in Australia temporarily. The applicant first applied for, and was granted, a Medical Treatment visa in 2019. He applied for the Medical Treatment visa which is the subject of this application for review in 2020. His medical treatment has continued throughout this time, for considerably longer than anticipated, and it has been interrupted by his incarceration. The applicant has expressed a strong desire to remain in Australia and be treated by his preferred medical practitioners until he reaches the point where he considers himself to be as well rehabilitated as he can be, based on their advice.
In the Tribunal’s view, the applicant’s circumstances mean that the timeframe that might be required to achieve this goal is uncertain and potentially indefinite at this stage despite the applicant’s estimate in the hearing of 12 months. For example, the applicant has given evidence that his physiotherapy regime has been significantly reduced in prison. In 2022, Dr Baddour recommended the applicant focus on his physical training before he would revisit his opinion on the further surgery the applicant wants. Mr Brabazon in his letter noted the importance of the applicant’s strength and conditioning regime for any potential further surgery and expressed the hope that the applicant’s time away from the clinic has not resulted in his condition deteriorating. Given the uncertainties around the applicant’s possible release from prison on bail and the timing of this, if and when he is finally able to see Dr Baddour again his physical condition could have deteriorated since February 2023. The information referred to above suggests that this could potentially delay further surgery if Dr Baddour recommends the applicant meet certain physical goals before he would consider performing the surgery which he had previously recommended against. This is speculation but highlights the uncertainty of the applicant’s medical situation and the timeframes involved for him to reach a point with his rehabilitation which he is satisfied with. As noted above, the applicant’s evidence in the hearing that within 12 months he thinks he would be able to achieve a level of overall rehabilitation that he would be satisfied with and have his last appointments is the applicant’s estimate and opinion and is not supported by objective medical evidence from his treating medical practitioners.
For the reasons set out above, the Tribunal accepts that the applicant wishes to remain in Australia to enable him to continue medical treatment with his current team of practitioners to reach a level of rehabilitation he is satisfied with, which may or may not involve further surgery. However, based on the evidence before it and the Tribunal’s concerns and findings set out above, the Tribunal cannot be satisfied that the applicant has a genuine intention to stay temporarily for this purpose. The Tribunal’s view on this is not outweighed by its findings above that the applicant has complied substantially with the conditions to which his last substantive visa, or subsequent bridging visa, were subject and that he intends to comply with the conditions to which the Medical Treatment visa would be subject.
Therefore, for the reasons set out above, 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, namely, medical treatment.
Given the above findings, cl 602.215 is not met.
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.
Rachel Da Costa
Member

[2024] AATA 73

18 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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