Maung (Migration)

Maung (Migration) [2020] AATA 5555 (18 December 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Maung Maung
CASE NUMBER:  1823902
DIBP REFERENCE(S):  BCC2018/3824462
MEMBER:Deputy President Jan Redfern
DATE OF DECISION:  18 December 2020
DATE CORRIGENDUM
SIGNED:22 December 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

1.    The third heading on page 2 “SECONDANRY MATERIALS” should be replaced with “SECONDARY MATERIALS”; and
2.    In paragraph 34 on page 7 the word “application” should be replaced with “decision”, so the text of the decision reads as follows:
“34. … he must meet all relevant criteria at the time of the decision,...”
Jan Redfern PSM
Deputy President

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Maung Maung
CASE NUMBER:  1823902
DIBP REFERENCE(S):  BCC2018/3824462
MEMBER:Deputy President Jan Redfern
DATE:18 December 2020
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 December 2020 at 4:06 PM
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – whether applicant has a genuine intention to stay temporarily in Australia – consideration of intention to maintain ongoing residence in Australia – no specified medical treatment – whether applicant is unfit to depart – request to refer application to the Minister for Ministerial Intervention – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth), ss.65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl.602
SECONDANRY MATERIALS
Department of Home Affairs, Procedural Instruction, Sch2 Visa602-Medical Treatment
Department of Home Affairs, Procedures Advice Manual 3 (PAM3) Act – Ministerial Powers – Minister’s guidelines on Ministerial powers (s.351, s.417 and s.501J)
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 August 2018 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 is a citizen of Myanmar and was born in 1939. The applicant arrived in Australia on 23 November 2013 as the holder of a Sponsored Family Visitor Subclass 600 visa and has remained in Australia since this date. He arrived with his wife, Mrs Tin Mya, who has a related application before the Tribunal, being matter number 1823899. The applicant and his wife have made several applications for visas which would allow them to remain in Australia, all of which have been unsuccessful.
On 18 June 2018 the applicant applied for the Medical Treatment visa. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
The delegate refused to grant the applicant the visa because she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes of obtaining medical treatment or for related purposes. Relevantly, the delegate found that, on balance, the applicant was” attempting to use the medical treatment visa pathway as a means to maintain ongoing residence”, and that the applicant “did not genuinely intend to remain in Australia on a temporary basis”. Notably, the reasons for decision in this matter were in almost identical terms to the reasons for the decision in the related matter.
The applicant applied to the Tribunal for review of the decision on 17 August 2018.
By letter dated 4 September 2020, the applicant was requested to provide additional information in relation to his application for the visa. The applicant was advised that the Tribunal would consider whether the applicant met other relevant criteria in the Regulations in relation to the proposed medical treatment and further information was requested in relation to these matters. The Tribunal also requested information from the applicant’s treating doctor, Dr Mohammad Shahabi, by letter dated 7 September 2020. Further information was provided by the applicant’s representative on 2 October 2020.
I conducted a directions hearing by telephone on 8 October 2020 for this matter and the related application, which was attended by the applicant’s representative, to discuss how the review should proceed. The applicant’s representative was advised that, given the difficulties, a hearing in person would be arranged if the applicant wished to proceed with the review. In correspondence received from the applicant’s representative on 19 October 2020, the representative advised that the applicant waived his right to attend the hearing and consented to the Tribunal proceeding to make a decision on the papers, without a hearing. The representative also stated that the applicant “may not technically satisfy the requirements for the visa on its merits” but requested the Tribunal refer the matter for Ministerial Intervention under s 351 of the Act.
For the following reasons, I have decided that the decision under review should be affirmed. I have also considered the applicant’s request for the matter to be referred for Ministerial Intervention and have decided not to refer this matter for the reasons outlined below.
RELEVANT LAW
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. Part 602, specifically cl.602.2 of the Regulations, sets out the primary criteria that must be satisfied by the applicant at the time of decision.
While the delegate found that the applicant did not meet the criterion relating to whether he was genuinely intending to stay temporarily in Australia for the purpose for which the visa would be granted, there are other criteria which must be met that fall for consideration. As such, it is apt to outline the criteria in cl.602 of Schedule 2 to the Regulations to identify the determinative issues in this case. Relevantly, all criteria must be satisfied at the time a decision is made on the application.
Clause 602.211 of the Regulations requires that the visa applicant must seek to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
Clause 602.212 of the Regulations, as extracted in the attachment to this decision, requires that the applicant meet one of the seven alternative sub criteria in cls.602.212(2)-(8) of the Regulations.
Clause 602.212(2) sets out the criteria for the proposed medical treatment. All criteria must be met. Relevant to the circumstances of this case, subclause (2) requires that:
·the applicant seeks to obtain medical treatment in Australia;
·the arrangements for treatment have been concluded;
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community;
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded; and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
The criteria set out in cls.602.212(3)−(5) of the Regulations relate to the circumstances when the applicant is an organ donor, a support person for another applicant seeking medical treatment or a citizen of Papua New Guinea. These provisions do not apply to the applicant. This is not in dispute. The criteria in cl.602.212(6) apply in respect of an applicant who has turned 50, 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, has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criterion but has been refused the visa. While I accept that the applicant has turned 50 and has existing medical conditions, there is no evidence that he has applied for a permanent visa in Australia and has met all the criteria other than the health criterion. In this case, the applicant applied for a permanent protection visa but the application was refused on the basis that he did not meet the relevant protection criteria. Furthermore, there is no evidence that the applicant is medically unfit to depart Australia as provided by subclause (6)(f) of cl.602.212. As such, subclause (6) does not apply.
Clauses 602.212(7) and (8) apply where an applicant meets the nominated criteria in subclauses (2)−(6) but does not meet all relevant criteria in circumstances where there is financial hardship or where there are compelling reasons why the visa should be granted. These provisions do not apply.
Broadly speaking, cl.602.213 of the Regulations applies if the applicant holds a substantive temporary visa at the time of the application. The applicant did not hold a substantive temporary visa at the time of his application for the medical treatment visa and as such this provision is not relevant.
Clause 602.214 of the Regulations requires that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted. There is no evidence about this and I cannot be satisfied either way about whether this criterion is met. However, for the reasons that follow, it is apparent that this is not a determinative issue in this case.
Clause 602.215 of the Regulations, as extracted in the attachment to this decision, 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. Given the applicant’s migration history in Australia, this is a relevant issue and, notably, was the subject of the refusal by the delegate.
Clause 602.216 of the Regulations requires the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia. The applicant asserts that he will be supported by his immediate family members, including his daughter and son-in-law. Based on this evidence alone, I cannot be satisfied either way about whether this criterion is met but this is not a determinative issue.
Having regard to the material provided and the circumstances in this case, it appears that the critical determinative issues are whether the applicant meets the criteria set out in cls.602.212(2) and 602.215 of the Regulations. As already noted, I have not assessed whether the applicant meets cls.602.214 and 602.216 of the Regulations. Clauses 620.212(7) and (8) are only relevant if I am satisfied that the applicant meets cls.602.212(2)(a) to (c) of the Regulations.
BACKGROUND AND OUTLINE OF EVIDENCE
The applicant arrived in Australia as the holder of a sponsored visitor visa in November 2013. He currently holds a bridging visa.
The applicant’s visa history was set out in the decision of the delegate. It is similar to the migration history of his wife. The applicant applied for a protection visa which was refused by the Minister on 23 September 2014. He applied for judicial review of this decision and the application was dismissed by the Full Federal Court on 1 July 2017. The applicant subsequently applied to the Minister to have his circumstances reviewed, which was deemed inappropriate to consider on 12 July 2017. On 14 July 2017, the applicant lodged a second application for protection. Section 48A of the Act provides, in brief, that a non-citizen may not make a further application for a protection visa while in Australia after an application for a protection visa has been refused unless the Minister determines under s.48B of the Act that it is in the public interest that s.48A should not apply. There is no evidence that the Minister has made such a determination. On 30 April 2018, the applicant lodged a request for condition 8503 on his bridging visa to be waived. Condition 8503 provides that the holder of the visa will not be entitled to be granted a substantive visa while in Australia, other than a protection visa. Condition 8503 was waived on 6 June 2018.
The applicant applied for the Medical Treatment visa on 18 June 2018.[1] In his application, the applicant listed the medical conditions requiring treatment, being “treatment of multiple and complex health conditions. Please refer to the letter from the treating doctor.” The letter from the treating doctor was a letter from Dr Mohammad Shahabi dated 12 June 2018 which noted that the applicant was suffering from “multiple medical conditions including moderately severe diabetes, multiple joint arthritis with mobility issues”. The applicant’s care plan was identified as needing psychological treatment for the applicant’s depression and anxiety, physiological and occupational therapy for his mobility issues, a social worker for regular family meetings, a hearing test and hearing aid and regular blood testing for the management of his diabetes and osteoarthritis. The period nominated for the treatment was from 20 June 2018 to 20 June 2021. Accompanying the application was a form dated 14 June 2018 known as “Evidence of intended medical treatment”, being a Form 1507, which was completed by Dr Mohammad Shahabi. Dr Shahabi recorded the medical condition requiring treatment as “diabetes myelitis type II”, “osteoarthritis/depression”, “knees/hips”, “medical therapy – regular bloods, physiotherapy, pain killer”. Dr Shahabi did not respond to the request to provide information to the Tribunal.
[1] Form 48ME
The information requested by the Tribunal in its letter of 4 September 2020 included any evidence of treatment in relation to the medical condition referred to in the Form 1507, any document showing that arrangements have been concluded to carry out the treatment, any documents in relation to costs relating to any such treatment, any evidence to show the payment of those costs would not be a charge on the Commonwealth and copies of any medical reports and documents from Dr Shahabi relating to the nature and estimated duration of the treatment.
On 17 September and 2 October 2020, in response to the Tribunal’s request for information, the applicant’s representative provided to the Tribunal medical certificates from Dr Shahabi dated August 2017, March and October 2018 and Dr Nayara Aktar, general practitioner, dated 16 September 2020, and evidence of payments made to the applicant’s physiotherapist.
The applicant’s representative submitted that since the application, the applicant’s health conditions had “further deteriorated”. It was noted that the applicant had “seriously impaired” mobility and that he and his wife were being cared for by his son-in-law. The applicant provided a medical certificate from Dr Aktar in the following terms:
This is to certify that Mr Maung Maung [date of birth], in my opinion is currently unstable and unfit for any physical activity due to his general weakness and old age. He has severe recurring asthma. He is fragile and deaf, with pre-existing moderately severe unstable diabetes. He is not coping day-to-day life with his unstable physical and mental health. His mobility is restricted to walking 50 metres aided at a slow pace. He cannot ascend one flight of stairs, without becoming severely dyspnoeic. He has fall risks as he has unstable movement and is prone to fractures and soft tissue injuries.
The applicant also provided copies of receipts for physiotherapy consultations on 3 December 2018 and 19 January 2019.
None of the documents provided outlined any particular proposed medical treatment. As such, no evidence was provided that there were “concluded arrangements” to carry out any treatment or that arrangements had been concluded for the payment of all costs relating to the treatment and all other expenses of the applicant’s stay in Australia or that the payment of those costs would not be a charge on the Commonwealth, State, Territory or a public authority in Australia.
The applicant’s representative submitted that, in relation to the cost of any treatment that the applicant was receiving, he had been instructed to submit that the applicant had private health cover between 2015 and 2016 which was withdrawn, following which he incurred costs personally and was supported by his son-in-law, who was a general practitioner. It was also submitted, although there was no evidence to this effect, that the son-in-law and his medical friends have assisted the applicant without charging as a matter of “professional reciprocity”. It was therefore submitted that the applicant’s treatment would not be a burden on taxpayers.
CONSIDERATION OF CLAIMS
The issues for determination in this matter are whether the applicant satisfies the criteria in cls.602.212(2) and 602.215 of the Regulations.
I am not satisfied that the applicant meets the criteria in cl.602.212(2) at the time of my decision.
The difficulty in this case is that the applicant has provided details of a broad range of ongoing health issues. Based on the certificate from Dr Aktar, I accept that the applicant, who is 81 years old, is unstable and unfit, has severe recurring asthma, is fragile and deaf and has pre-existing moderately severe unstable diabetes. There is no medical treatment proposed of a temporary nature because it is apparent that these issues are ongoing and are likely to require constant monitoring by health professionals. The criteria in cl.602.212(2) does not contemplate open-ended medical treatment but rather specified medical treatment of a temporary nature in respect of which arrangements have been concluded to carry out the treatment. The criteria further require that a decision-maker be satisfied that arrangements have been concluded for the payment of all costs and that those costs are not a charge on government, whether they be Commonwealth, State or through a public authority.
The application did not identify a particular treatment, nor has there been any evidence provided along these lines sufficient to satisfy me that the applicant meets the criteria set out in cl.602.212(2). In summary, there is no evidence of any specified medical treatment sought or proposed in relation to these matters, nor is there evidence of any concluded arrangements to carry out that proposed treatment. As such, at the time of my decision I am not satisfied that the applicant meets cl.602.212(2)(a) or (b) of the Regulations. Moreover, as there is no specific medical treatment proposed, it follows that I cannot be satisfied the applicant meets cls.602.212(2)(e) and (f) in relation to the costs of any such treatment. An applicant must satisfy all of the relevant criteria enumerated in subclause (2) to meet the criteria in cl.602.212. Accordingly, I am not satisfied that the applicant meets the requirements set out in cl.602.212(2) of the Regulations. As no other provisions in cl.602.212 are relevant, I am therefore not satisfied that the applicant meets the criteria in cl.602.212 of the Regulations.
While there is no need to consider the matter further because I am not satisfied the applicant meets cl.602.212 and he must meet all relevant criteria at the time of the application, the delegate refused the application on the basis that she was not satisfied the applicant met the criteria in cl.602.215 of the Regulations and so I have considered this issue for completeness.

Clause 602.215 sets out the matters that must be considered when determining whether an applicant “genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”. The Tribunal must have regard to three matters.
First, the Tribunal must have regard to whether the applicant has complied substantially with the conditions to which the last substantive visa or any subsequent bridging visa held by the applicant was subject (cl.602.215(1)(a)). There is no evidence that the applicant has failed to comply substantially with such conditions.
Secondly, the Tribunal must have regard to whether the applicant intends to comply with conditions to which the Subclass 602 visa would be subject (cl.602.215(1)(b)). According to the Department Procedural Instruction,[2] a Medical Treatment visa would usually be subject to conditions 8101 and 8102 (restrictions on work and study or training) and condition 8503.[3] There is no evidence to suggest that the applicant does not intend to comply with these conditions. Notably, the applicant is 81 years old and there is no suggestion that he proposes to work, study or engage in training. I further note that the applicant did not make the application for this visa until condition 8503 was waived. These matters tend to suggest that the applicant would comply, and at least would intend to comply, with the conditions to which the visa would be subject.
[2] Department of Home Affairs, Procedural Instruction, Sch2 Visa602-Medical Treatment.
[3] Relevantly 602.611, these are the only conditions that can be imposed
On the issue of “any other relevant matter” referred to in cl.602.215(1)(c) of the Regulations, I note that the Procedural Instruction provides that a “genuine” visitor is not defined in the Act but that the policy envisages that an applicant should have a genuine intention to leave Australia at the end of the medical treatment plan. In particular, it is noted that a Medical Treatment visa should not be granted to applicants who intend to remain in Australia for a longer period to, for instance, maintain ongoing residence in Australia. This would be, in my view, a “relevant matter” for the purposes of cl 602.215(c) of the Regulations. In this case, the applicant has not given evidence of his intention but there are a number of matters from which it can be inferred that the applicant’s intention is not to leave Australia at the end of any medical treatment plan. Those matters are as follows.
First, the applicant has ongoing health issues, yet there is no specific medical treatment or updated medical treatment plan proposed. Relevantly, there is no evidence about any specified ongoing or regular medical treatment proposed for the applicant on a temporary basis. The applicant’s identified health issues are broad ranging, long term in nature and open ended and the submission is to the effect that, given these broad ranging and serious health issues, the applicant should be allowed to stay to have these issues properly monitored and treated. This evinces an intention for a permanent rather than temporary stay.
Secondly, the applicant first arrived in Australia in 2013 and has made several applications for a permanent visa, relevantly, on two occasions for a protection visa. The repeated applications for a protection visa, the previous request for a review by the Minister and the current request for Ministerial intervention evince an intention for a permanent rather than temporary stay.
In summary, while I note that subclauses (a) and (b) of cl 602.215 are in favour of the applicant, it can be inferred from the matters set out above that the applicant does not intend to temporarily stay in Australia for the purposes of the Medical Treatment visa.
Accordingly, I am not satisfied that the applicant meets the requirements of cl.602.215 of the Regulations. For completeness, I note that I have come to a similar conclusion in relation to the related application for the applicant’s wife.
Given my findings, the decision under review is affirmed.
MINISTERIAL INTERVENTION
Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal under s.349 of the Act a more favourable decision if he or she thinks that it is in the public interest to do so. The guidelines relating to the Minister’s discretionary power under s.351 of the Act are set out in the Department’s Procedures Advice Manual 3 (PAM3) Act – Ministerial Powers – Minister’s guidelines on Ministerial powers (s.351, s.417 and s.501J). The guidelines provide that cases that have one or more “unique or exceptional circumstances”, such as those described below, may, be referred for possible consideration of the use of the Minister’s intervention powers, relevantly including:
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person;
·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia;
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case;
·a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country.
There is no evidence that there are particular benefits that would result from the applicant being permitted to remain in Australia, nor is there any evidence provided that the applicant would face a significant threat to their personal security, human rights or human dignity if he returns to Myanmar. There is no evidence that the outcome in this case would lead to an unfair or unreasonable result in this particular case which is, for instance, an unintended consequence of the legislation.
On the other hand, there is evidence that the applicant is aged, frail and has particular health conditions; and as a result, he may benefit from remaining in Australia. He has been in Australia for over seven years and there is evidence to suggest that he is residing with his wife, who also has health issues, and with his daughter and son-in-law who are supporting both him and his wife. This may be sufficient to enliven the Minister’s discretion to consider intervention on compassionate grounds. However, there is nothing that would appear to be unique or exceptional in this case and I note that the matter has already been considered for intervention as recently as July 2017.
I therefore do not propose to refer this matter to the Minister for intervention under s.351 of the Act but note that this does not preclude the applicant or his representative from making a more detailed submission to the Department under the relevant guidelines about intervention. I also note that there may be additional information, such as whether there are any supports or available treatment in Myanmar, which have not been provided to me in the evidence or submissions.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Jan Redfern PSM
Deputy President

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).
602.215
(1)  The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)  whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and
(c)  any other relevant matter.
(2)  However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

[2020] AATA 5555

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