Le (Migration)

Le (Migration) [2018] AATA 5709 (19 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anh Tuan Le
CASE NUMBER:  1732276
DIBP REFERENCE(S):  BCC2017/4443364
MEMBER:Nora Lamont
DATE:19 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Statement made on 19 December 2018 at 10:36am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Visa) – Genuine intention to stay temporarily – maintain ongoing residence in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.212, 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 Immigration on 1 December 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 November 2017. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the applicant the visa because the applicant’s immigration history demonstrates a clear pattern that he is persistent in remaining in Australia long term and has no intention of departing Australia to return to their home country to live.
The applicant appeared before the Tribunal on 7 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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 that the applicant has been on a medical treatment visa but his condition has not deteriorated significantly to the point that he is unfit to travel, incapacitated or incapable of departing Australia at this time. Further, the delegate was not satisfied that the applicant intended to stay temporarily in Australia.
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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The applicant has not turned 50 and has not applied for a permanent visa. The applicant is not medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. 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 discussed above the applicant does not meet cl.602.212(6).
·if not, whether or not the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl.602.215(1)(a) to (c).
Given the above findings, cl.602.215 is not met. The Tribunal then turns its mind to whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted. The applicant arrived in Australia in May 2013 and departed once between 23 March 2015 and 7 May 2015. The applicant was first on a student visa and applied for a further student visa which was refused on the grounds that he was found not to be a genuine student and that he applied for a further student visa as a means of maintaining residence in Australia.
The applicant injured himself on 12 January 2016. This was now almost three years ago. The applicant told the Tribunal he was receiving weekly payments from WorkCover for his injury and was awaiting a final payment from WorkCover. When asked why he could not go back to Vietnam the applicant stated he didn’t know if the weekly payments would continue and if he could receive the best treatment for his hand. The applicant also stated that there would not be any follow up in Vietnam and no weekly payment they would only cover hospital expenses.
The Tribunal asked the applicant what he was doing to support himself and how he spends his days. The applicant stated that he mostly stays at home and does hand exercises. The applicant claims he needs further treatment and wants to finish the WorkCover payments and would like another three months. The applicant stated he wasn’t a burden to anyone as he was not getting any Centrelink payments.
The Tribunal was not provided with any long term medical plans. The applicant stated that they don’t have a long term plan they do it in stages and report to WorkCover. The applicant’s migration agent requested two weeks in order to get the Tribunal a long term plan. The Tribunal received a letter from the plastic surgeon that stated the applicant would have one more surgery and that was the final procedure. A report provided to the Tribunal dated 20 June 2018 the procedure could be done and the applicant would not require any rehabilitation after the surgery. [1]
[1] Folio page 58
The applicant also sent the Tribunal a letter from his primary physician stating that he will continue to require appropriate treatment for a further 6-8 months as his condition was still being managed by his plastic surgeon and his primary physician. The physician stated in the letter that he has pain and tenderness in his right wrist and injured fingers and very poor grip in his right hand and he struggles to write, drive long distances, lift, pull, push or carry items using his right hand. He also suffers from insomnia and depressed mood. The Tribunal asked the applicant about his depressed mood and he said he was seeing a psychologist for a period of time but then they stopped providing an interpreter and he has not seen a psychologist for over a year now.
A report contained in the Tribunal file dated 20 June 2018 from Dr Darrell Nam states that the applicant could work in some capacity if he undertook modified or alternative duties.[2] Further in a Medical opinion dated 29 March 2018 the writer states that the applicant has capacity for alternative duties and he has the capacity for new employment services and retraining. The Tribunal is satisfied that the applicant is well enough to begin work or retraining and does not require any more significant treatment in Australia.
[2] FOLIO page 52
Aside from the applicant orally telling the Tribunal he could not access the medical treatment he required in his home county of Vietnam the Tribunal was not provided with any evidence that supports this notion that he would be unable to access any further treatment should he need it. In addition the applicant has not been receiving any psychological treatment for a considerable period of time so there is no evidence that he must stay in Australia to continue to receive psychological treatment. The Tribunal is satisfied that the applicant can return to his home country of Vietnam as his medical condition has not deteriorated and he is able to depart Australia at this time.
Given that the applicant has had almost three years of medical treatment in Australia and he has not provided any compelling or exceptional circumstances to warrant a further stay the Tribunal is satisfied that the applicant does not genuinely intend to stay in Australia temporarily. Medical treatment visas are intended for visits only and for the purposes of treatment.
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.
Nora Lamont
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).

[2018] AATA 5709

19 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction