Kiako (Migration)

[2023] AATA 1952

Kiako (Migration) [2023] AATA 1952 (22 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christaki Kiako

REPRESENTATIVE:  Mr Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  2212715

HOME AFFAIRS REFERENCE(S):          BCC2022/2945867

MEMBER:Angela Cranston

DATE:22 May 2023

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 May 2023 at 10.58am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 –applicant does not genuinely intend to remain in Australia on a temporary basis –adverse migration history  – maintaining ongoing residency – not satisfied the applicant genuinely intended to remain in Australia temporarily for the purposes of medical treatment – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 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 Home Affairs on 24 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).

2. The applicant applied for the visa on 29 July 2022. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3.    The applicant stated that he wanted to remain in Australia from 29 July 2022 to 28 July 2023 and that his medical conditions requiring medical treatment was currently being investigated and he had been referred to a specialist and was waiting. Also provided was a form 1507 stating that details of treatment were chest discomfort under investigation, and treatment consisted of blood tests, ECG, possible specialist review.  The applicant also provided the following statement:

..The reason for medical treatment is that we wish to get our treatment done while we are in Australia because we have no one in Greece to look after us during the treatment and here we have our son and daughter and their parents to help us.

We have asked for a visa for a year but if 6 months is given to us we will be more than happy to accept it because after 6 month, my son may come with me to Greece if needed for another few months.

4.    The delegate refused to grant the applicant the visa for the following reasons:

The applicant first arrived in Australia over seven (7) years ago on 8 November 2014 as the
holder of a Electronic Travel Authority (subclass 601) visa, and has not departed ever since.
On 12 January 2017 the applicant was granted a TU 500 (Student) visa. This visa was
cancelled on 8 March 2019 on the grounds that the applicant was not a genuine student,
as they had not been enrolled in a registered course since 23 February 2018. The applicant
sought merits review of the decision to cancel at the AAT (differently constituted) and the
decision was affirmed by the Tribunal.
On 03 February 2020, the applicant lodged an application for Medical Treatment
(subclass 602) visa. This application was refused on 29 April 2020, and the applicant has
unsuccessfully sought review of the Department’s decision at the AAT.
The applicant’s last substantive visa was cancelled over three (3) years ago on 08 March
2019, but the applicant still has not departed. The applicant has spent time in Australia as an
unlawful non-citizen between 09 March 2019 and 04 April 2019.

I have taken into consideration
● Claims in the applicant's submission that they wish to substantially comply with the
present and future visa conditions, and they plan to apply for the parent’s visa in the
future to stay in Australia permanently, as both of their children are in Australia;
● Claims in the applicant's submission that they don't have support for their medical
treatment in their home country;
● Claims in the applicant's submission that they wish to remain in Australia temporarily
for medical treatment and they wish to return to their home country as soon as the
treatment is finalised.
However, I give significant weight to the amount of time already spent in Australia along with
the applicant's migration history, including the fact that since arriving in Australia in 2014,
the applicant has not departed. In their Medical Treatment visa application, the applicant has
not provided sufficient documentation to demonstrate their intention or incentive to depart
Australia now or in the near future. On balance I find that the applicant’s desire to remain in
Australia and migration history outweighs their claim that they intend to remain temporarily in
Australia to seek medical treatment.
I have considered the claims and supporting evidence that the applicant has provided with
their application. I find that the applicant is attempting to utilise the Medical Treatment visa
pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

5.    The applicant provided a copy of that decision to the Tribunal and appeared before the Tribunal on 4 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Veera Kiako. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

6.    The applicant was represented in relation to the review.

7.    Prior to hearing the Tribunal received the following:

Receipt from medical centre dated 1 July 2022 and 12 July 2022

Account for Pathology services dated 10 July 2022

CT Coronary Arteries request 12 January 2023

8.    The applicant stated that he had never applied for a parent visa and did not intend to. He stated since the medical treatment visa application, he had requested a cardiac examination but could not be more specific as to when he had done this. The Tribunal put to him that it had a pathology report from July 2022 and a CT consent form from January 2023. The adviser confirmed that was all the medical information that was before the Tribunal, but he believed there were other documents.

9.    The applicant stated that he had no intention of staying in Australia, and the reason why he remained after his visa was cancelled was because his health deteriorated. He also stated his children were in Australia. When asked why he had not returned to his country after his visa was cancelled on 8 March 2019 and he had not applied for a medical treatment visa until 3 February 2020, he stated he had his children in Australia, and he trusted the medical profession. He also stated he wished to have medical treatment and then return to his country. He stated he wanted to get better and then leave.

1. Mrs Kiako stated that the applicant had a stroke in 2019 and from then on things had changed a lot.

2. The adviser stated they wanted a further 2-3 months in Australia before departing.

3. Post hearing the Tribunal received the following:

Maroubra medical centre letter dated 30 September 2021

Discharge summary dated 2 January 2020

Lab report dated 2016

Statutory Declaration from Catherine Constantinidis a social worker dated 15 March 2022 stating she has provided psychological intervention and emotional support to the applicant.

Text message stating review appointment is for 12 July attached to Med First medical Centre invoice dated 15 May 2023

From 1507 with attachments

1. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

2. Since the applicant has not applied for a permanent visa the requirements of which the applicant appears to have met, the applicant does not meet cause 602.212(6) and accordingly, the requirement in clause 602.215 applies and the issue in this case is does the applicant have a genuine intention to stay temporarily for the visa purpose?

3. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In the present case, the applicant seeks the visa for the claimed purpose of medical treatment.

4. 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.

5. The applicant arrived in Australia on 8 November 2014 and has never departed. Since then, he applied for an earlier medical treatment visa that was rejected and he unsuccessfully sought review.

6. The applicant’s student visa was also cancelled on 8 March 2019 on the grounds that he was not a genuine student.

7. The Tribunal must consider whether the visa applicant intends to comply with the conditions to which the Subclass 602 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

   8101 – must not work in Australia

   8201 – must not engage in study or training in Australia for more than 3 months

8. There is no evidence before the Tribunal that the applicant would not comply with these visa conditions.

9. The Tribunal has also considered the claims and supporting evidence that the applicant provided with his medical treatment visa application that indicated he wished to remain in Australia from 29 July 2022 to 28 July 2023 and that his medical conditions were currently being investigated and that he had been referred to specialists and was waiting.  A further CT consent form dated 12 January 2023 has been provided and post hearing, there was a text message stating there is a review appointment for 12 July and that the applicant had consulted Medfirst medical centre on 15 May 2023.

10. While there is little current medical information before it, the Tribunal accepts the applicant has sought advice from the health profession. However, the applicant’s past migration history means that the applicant first arrived in Australia on 8 November 2014 on a student visa that was cancelled on 8 March 2019 on the grounds that he was not a genuine student and he has not since departed.  Since then, (and in addition to this medical treatment visa application that is under review) he applied for another medical treatment visa on 3 February 2020 that was rejected, and he unsuccessfully sought review.

11. Having regard to all of the evidence, the Tribunal finds that the applicant is attempting to utilise the medical treatment visa pathway to maintain ongoing residence.

12. The Tribunal is not satisfied that the applicant genuinely intends to remain temporarily in Australia to obtain medical treatment.

13. Given the above findings, clause 602.215 is not met.

DECISION

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

Angela Cranston
Member