May (Migration)

[2018] AATA 5831

May (Migration) [2018] AATA 5831 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manuel May

CASE NUMBER:  1718864

DIBP REFERENCE(S):  BCC2017/2639225

MEMBER:Susan Trotter

DATE:29 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 29 November 2018 at 4:54pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – adjournment declined – genuine temporary stay – knee injuries – prior surgeries unsuccessful – end date for treatment not provided – no treatment plan outlining surgical intervention required – rehabilitation treatment and medication recommended by medical report – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 Immigration on 31 July 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 36-year-old citizen of Germany. He applied for the visa on 25 July 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).

3. The delegate refused to grant the applicant the visa on the basis that they were not satisfied that cl.602.215 of Schedule 2 to the Regulations was met as required.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 21 August 2017.

5. On 9 August 2018, the Tribunal invited the applicant to attend a hearing at the Tribunal on 30 August 2018.

6. On 15 August 2018, the applicant sought an adjournment of the 30 August 2018 hearing, raising a number of issues in support of the request, including that:

   (a)  he had an appointment scheduled with an orthopaedic surgeon in Cairns on 31 August 2018 that makes it impossible to provide the Tribunal with the latest information and treatment plans in relation to his knee injury;

   (b)  he needed to engage in psychological and psychiatric treatment due to recommendations of various treating health professionals;

   (c)  he was unable to meet deadlines at present because he was not able to concentrate and focus;

   (d)  he had the previous week started treatment with medication which will need to continue for a year;

   (e)  his wife had recently injured her hand (receiving nine stiches and a splint) such that she could not support him; and

   (f)    he and his wife live in a very remote area which makes it even harder for them to meet deadlines and to get in contact with all doctors and gather the latest information and documents.

7. In support of the request for an adjournment, the applicant provided a medical certificate from Dr Goss certifying that the applicant was receiving medical treatment during the period 14 August 2018 to 21 August 2018 which prevented him meeting deadlines until he was able to concentrate and focus at an optimal level, with further review by a specialist scheduled for 31 August 2018.

8. The Tribunal declined the request for an adjournment but at hearing instead agreed to grant the applicant further time after the hearing in which to provide further evidence and/or submissions which would be taken into account.

9. The applicant appeared before the Tribunal on 30 August 2018 by video conference to give evidence and present arguments. With the consent of both applicants, the Tribunal held a joint hearing of the applicant’s hearing with his wife, Mrs Natalia May’s, application[1] by video conference and therefore also heard evidence from the applicant’s wife in relation to the applicant’s application.

   [1] Tribunal file no. 1718837

10. The applicant was represented in relation to the review. The applicant’s representative attended the hearing by telephone.

11. At the conclusion of the hearing, a further period of three weeks was requested by the applicant within which to provide further material. The Tribunal agreed to grant further time of over four weeks until 2 October 2018 and has taken into account further material received up until that time and also further material received between 2 October 2018 and the date of decision.

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

    ISSUES

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

14. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This requirement will not apply if the applicant has turned 50 and is medically unfit to depart Australia as described in cl.602.212(6). As the applicant is 36 years of age, cl.602.212(6) has no application in relation to this matter.

15. In determining whether cl.602.215 is met, the Tribunal must have regard to:

    (a)  whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa,

    (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.

16. Pursuant to cl.602.611 the conditions which must be imposed upon the visa are:

    (a)  8101 of Schedule 8 to the Regulations, which requires that the visa holder must not engage in work in Australia; and

    (b)  8201 of Schedule 8 to the Regulations which requires that the visa holder, unless under 18 and other conditions are met, must not engage in any studies or training for more than three months.

17. It follows that the issue to be determined by the Tribunal is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted having regard to:

    (a)  Has the applicant complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa?

    (b)  Does the applicant intend to comply with the conditions to which the Subclass 602 visa would be subject? And

    (c)  Is there any other relevant matter?

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The applicant’s evidence at hearing included as follows:

    (a)  He understands that his visa application failed to set an end date for his treatment and that is why his application has been refused. It has been a long and complicated process. He just wants to finalise his treatment and move on.

    (b)  He and his wife first arrived in Australia in 2013. He arrived about a month after his wife. He held a working holiday visa at that time. They planned on staying a couple of years – travelling and working. When they arrived they hoped they would be able to follow their careers in Australia (he is a nuclear physicist), but soon realised that their studies were not enough and they would have to do more study in Australia. The applicant is a diver and also wanted to see the reefs in Australia. They realised that they had no future in Australia and knew they would leave at a certain point. However, towards the end of their working holiday visa, in August 2014, he was offered a position that was very tempting as an irrigation/workshop manager on a big farm. Up until he was offered this position, he was intending to return to Germany.

    (c)  He suffered a knee injury on 8 October 2015. Germany has a wonderful health system but it does not cover citizens who have a work injury which occurred overseas unless they had a German employer.

    (d)  His injury was not initially complicated but two unsuccessful surgeries have complicated the condition. He is seeking surgery to get his knee back to a reasonable state and then he wants to depart Australia. He has been declared unfit to fly. He cannot work in his previous position. He cannot stand air-conditioning. He just wants the treatment to reattach his ligaments and then he is sure he will be able to walk again, to work again and to leave Australia straight away. He has already made contacts in other countries and has contact with his parents-in-law at home and could even go back to the university in Germany and lecture. However, at this stage, without the treatment, he will not be able to work at this stage and he wants to resolve this in Australia – to have the surgery or treatment to get back on his feet and then he his happy to leave.

    (e)  He will have no issue leaving Australia once he gets the necessary surgery and treatment to get him back on his feet. They have had a lot of stressful experiences since he had his injury. They have had positive experiences in Australia but there have also been a lot of complications. The last shocking complication was when his wife was put into detention. There were two days when he did not know where his wife was and nobody would tell him. He afterwards found out that she was treated horribly while in detention and he would have departed already but he wants to have the necessary treatment for his knee. He used to be a passionate athlete but is now not even able to walk up and down stairs. He wants to stay in Australia up to the point when he is fit to work again or at least the stage where his ligaments are reattached. He cannot make Germany responsible for a work injury he had in Australia.

    (f)    His previous surgeries have been done in Cairns but have not been successful so he is now seeking surgery in Brisbane or Sydney. He has been referred to Dr Vertullo who is said to be the best knee surgeon in Australia. Dr Vertullo has not yet seen him in person but has suggested, from looking at his documentation, that he needs major surgery. However, Dr Vertullo cannot give him details until he has seen the applicant in person. Dr Vertullo has first asked that he have an assessment with a local surgeon and then he can forward the assessment to Dr Vertullo. Dr Vertullo will then know what needs to be done with his knee and the administrative matters for surgery can be finalised with Dr Vertullo. His wife will then drive the applicant to the Gold Coast for the surgery as he is not able to fly.

    (g)  When he had his original surgeries done, the airlines would not agree for him to fly because of a condition that he woke up from after the second surgery, which caused him to just black out. One of the airlines must have then put him on a no-fly list, and all of the airlines seem to have therefore put him on a no-fly list. The last time he was told that he was not able to fly due to the condition was in January 2018. He has not received any treatment in relation to the condition. It arose because of a trapped nerve. He has contacted a number of airlines and they will not take him.

    (h)  He is due to meet with Dr Shepherd in Cairns on 31 August 2018.

    (i)    If the further surgery is not successful, he will have to adjust to that. Whether it works or not he will go back to Germany, but he has to try.

    (j)    Since 2015 the process with WorkCover has been very exhausting.

    (k)   He grew up for half his life with his grandparents, but they have passed away while he has been away. His parents and his sister still live in Germany. He wants to go back and see them. He is also very close with his parents-in-law, who also live in Germany, and he wants to see them again.

    (l)    He does not know how long he needs to stay in Australia for. It depends upon what Dr Vertullo says. His current plan is to explore the options with Dr Vertullo.

    (m) The Tribunal discussed with the applicant that in the visa application, he had stated that he wished to remain in Australia until 31 December 2017. The applicant told the Tribunal that at that stage he did not 100% understand how the medical treatment visa worked and how to deal with the timeframes. At that stage he thought he was under Workover and was going to be treated, and as long as he was being treated, thought he could stay on the medical treatment visa. However, what he has witnessed is that with WorkCover the process has been endless, whereas if he was under private cover it would get done quickly. He is fed up with the process and wants to just give it one more try, with the best surgeon he can get. However, because of the uncertainty and how long things take, he cannot give a definite date. At this stage he is just looking at the major surgery, but is happy to do the other things like rehabilitation overseas. He just wants to have the surgery settled. That is his biggest problem. He is a sports scientist. He can do the rehabilitation himself.

    (n)  The applicant said that he is hoping that the appointment with Dr Shepherd on 31 August 2018 will make it easy to make a date for the surgery with Dr Vertullo and then he will be able to achieve an end date for the treatment (in Australia).

    (o)  He has found out in the last year that his German qualifications are accepted in Papua New Guinea and he will be able to work there. However, the latest MRI shows more inflammation and cuts in his knee and he has realised that is why he has not been getting back on track, and why he is now engaging in the processes with Dr Shepherd and Dr Vertullo. He had not done this previously because a year ago he was told that he was good and he had to wait for the swelling to go down and it would be better. However, he now knows from the imaging that that is not occurring and that is why he needs further surgery.

    (p)  The Tribunal discussed with the applicant that the Department of Immigration was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal noted that the applicant’s wife’s visa was refused on a different basis, that is in relation to whether she was a support person of a person holding a medical treatment visa, and therefore dependent upon the applicant’s visa status.

    (q)  The Tribunal discussed with the applicant that one of the matters it was required to have regard to in determining whether he meets the requirement that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, is whether he had complied with the conditions of the last substantive visa or any subsequent bridging held.

    (r)   When queried, the applicant stated that the last substantive visa he held was the Subclass 417 working holiday visa. He was allowed to work on that visa. The main condition of the visa was that he had to depart by the end date of the visa or have applied for another visa.

    (s)  When queried as to whether the applicant had complied with all of the conditions of his last substantive visa, the applicant said he did to the extent that it was within his power. The Tribunal queried whether he had complied with all of the conditions of the visa. The applicant responded that to his understanding he did. The Tribunal queried then whether that meant the applicant left Australia before the end date of the visa or had another visa to remain in Australia. The applicant stated that he thought that he had another visa in place but he did not and was unlawful but it was only a very short period of time. He thinks it was for just a couple of days that he was unlawful.

    (t)    When queried, the applicant said he is currently the holder of a bridging visa and he understands the conditions of the visa include that he not work and that he not study and he not engage in criminal conduct, and he has complied with those conditions.

    (u)  The Tribunal also discussed with the applicant that one of the further matters it was required to have regard to in determining whether he meets the requirement that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted is whether he intends to comply with the conditions to which the Subclass 602 would be subject. The Tribunal noted that these conditions would include not being able to work in Australia, not be able to study for more than three months, and be expected to leave Australia within the period of the visa (usually granted for 12 months) or when the treatment is concluded. The applicant indicated that he would 100% comply with those conditions. He just wants his medical treatment.

19. The Tribunal put some information to the applicant pursuant to s.359AA of the Act as follows:

    (a)  The Tribunal stated to the applicant that it had some information that it had to tell the applicant before it asked him some questions, and that it would give the applicant an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to the applicant that would, subject to the applicant’s comments or response, be the reason or part of the reason, for affirming the decision under review to refuse to grant the visa. The Tribunal indicated it would explain the information and its relevance and asked the applicant if he wished to respond to or comment on the information. The Tribunal advised the applicant that he was entitled to seek additional time to respond to or comment on the information, and if he wished to do so, he should let the Tribunal know so that the Tribunal could consider his request, or alternatively he could respond straight away.

    (b)  The Tribunal noted that it had information before it that, in addition to other visas, the applicant had applied for a protection visa on the basis that the applicant did not consider the authorities in Germany would protect him because the authorities are not in control like they are in Australia.

    (c)  The Tribunal noted that the reason that information was relevant was because the Tribunal might reach the conclusion, based upon the applicant having applied for a protection visa, that it was the applicant’s intention to remain in Australia and not return to Germany on the basis that the applicant actually fears returning to Germany. The Tribunal indicated that if it did reach that conclusion based on that information, what that might mean is that the applicant does not genuinely intend to remain temporarily in Australia for the purposes for which the visa would be granted, such that the requirement in cl.602.215 was not met and the decision to refuse to grant the visa would have to be affirmed.

    (d)  The review applicant indicated that he understood the information and its relevance.

    (e)  When queried as to whether he wished to respond to that information, the applicant’s representative sought an adjournment of 10 minutes. The Tribunal granted the adjournment requested, including further time if needed (the Tribunal observes that an adjournment of 26 minutes ultimately transpired).

    (f)    Following the adjournment, the applicant stated that he made his protection visa application in October 2017, at which point he was still afraid as regards his former employer in Australia (with whom he was employed when he had his work injury), and his former employer’s vendetta against him since he had his work injury; his former employer did not have WorkCover and the applicant had accumulated a large amount of overtime – $60,000 to $70,000 ­– which was outstanding. Since he had the work injury, over the last three years, he received death threats from his former employer, he was in a court process with him and was in a very bad state with him. The employer claimed that he stole from him and he called immigration to get him out of the country because of the work injury he had. After he received the death threats from him, the next morning the wheel nuts were gone on his car. He reported all of this to the police, and in January 2018 the police investigated all of this. That is why he felt good because the Australian police would take care of the matter. He had telephone conversations with the former employer and he was very aggravated in regards to him (the applicant), and he was afraid if he returned to Germany there would be no-one who could help or follow up what was going on. In regards to that the last issue, the court case he had with his former employer was finalised in January 2018 (the prosecution offered no evidence). He has had no more contact with his former employer and everything cooled down. The police investigated all of the threats and other things, and he is satisfied that it is history now. He does not feel his life will be threatened when he goes back to Germany.

    (g)  The applicant said if it helps in any way, he is happy to withdraw the protection visa application straight away because all of those issues are finalised now and he does not feel the fear of going back to Germany.

    (h)  The Tribunal queried what the current status of the protection visa application was. The applicant responded that it was refused by the Department and that he has applied to the Tribunal for review. The Tribunal queried how it follows that a fear of his former employer in Australia led to the applicant lodging a protection claim in Australia on the basis that he feared for his life, and the life of his wife, if he returned to Germany.

    (i)    The applicant responded that his former employer is a multi-millionaire with a lot of different international businesses, and his personal understanding is that a lot of strange things happened, a lot of strange decisions were made, when he was working for his former employer, and conversations he had included death threats. His personal understanding is that his former employer is involved with the Columbian mafia. His former employer told him at the beginning of his employment that if he needed any documents he can organise them straight away. He would be able to get anything. After his employment ceased, his former employer said to him on the phone that he would be willing to do anything to get rid of him (the applicant) if he did not do everything his former employer said. He made a lot of complaints to the local police about this and they were investigating these matters. Further, last year when his wife was taken into detention, from the court room, his former employer was in the court room (in Mossman Magistrates Court in relation to claims that his former employer had brought up two years earlier that the applicant had stolen from him), even though he normally resides in Sydney. The applicant said he should not have been in the court room at that stage because he was a witness. They experienced a lot of strange things. Furthermore, his former employer was also at the last Tribunal hearing they had, just to stir them up. He stated that he was there to stop the member from giving them the visa. That was in relation to his first medical treatment visa application.

    (j)    The Tribunal suggested that having heard the applicant’s evidence as canvassed above, it still might hold a concern understanding why it is that the applicant sought a protection visa to stay in Australia, fearing a return to Germany, in those circumstances. The applicant responded it was a combination of the Australian authorities already investigating his former employer, and also it was protection against the degrading treatment in his home country in having no medical treatment. The Tribunal sought to clarify with the applicant whether, because of the reputation of his former employer, his connection with the Colombian mafia and the powerfulness of which his former employer had skited, the applicant felt that if he returned to Germany, his former employer would have the ability to threaten his life, or his wife’s life, without the protection of the police in Australia. The Tribunal indicated that it could still hold a concern that on the one hand the applicant is stating that he wants a medical treatment visa and wants to only stay in Australia temporarily, but on the other hand he had applied for a protection visa, a permanent visa to remain in Australia.  At the time he applied for the protection visa he had fears in relation to his former employer which was all resolved at the beginning of 2018; yet the applicant still has an outstanding application before the Tribunal in relation to the protection visa despite no longer holding that fear. This might cause the Tribunal to conclude that the applicant does not have a genuine intention to remain temporarily in Australia for the purposes for which the visa is granted.

    (k)   The applicant indicated that if it helped he could withdraw the protection visa application straight away. The Tribunal indicated that whether the applicant withdrew his protection visa application or not was a matter for him. However, it might still concern the Tribunal that at the end of August 2018, at a hearing where the applicant has been asked to tell the Tribunal about all relevant matters, the applicant did not raise that he has made a permanent protection visa application in Australia, and despite now saying he no longer holds a fear of returning to Germany since the police finalised the matters in January 2018, the applicant has not withdrawn the protection visa application of his own volition. The Tribunal indicated that all of those matters together might leave the Tribunal with concerns about what it can believe. On the one hand the applicant is suggesting that he only intends to remain temporarily in Australia for the purposes for which the medical treatment visa is granted, and on the other hand it is stated that the applicant only applied for the permanent protection visa on the basis of facts that existed six, seven or eight months ago, which no longer exist but he had not withdrawn that application. The applicant responded that he applied for the protection visa partly in relation to fear of his former employer, and partly because of his fear of not being treated.

    (l)    The applicant pointed out that as shown by his enquiries about jobs in Papua New Guinea earlier this year, he was already planning to leave Australia. He was trying to apply for certain different positions. At that stage the protection visa application was therefore out of his mind. He has had psychological therapy over the last year. He has not been able to adapt to the fact that he cannot walk stairs. As a sport junkie he has found this very difficult. Since 2015 he has felt like a cripple. He is in pain every day.

    (m) When queried as to what happened in relation to the job applications in Papua New Guinea earlier in the year, the applicant stated that he had to put that on hold once he realised, contrary to what the specialists in Cairns said about waiting for recovery and rehabilitation, he found out that he was getting nowhere and that he was getting worse and worse, so he then realised it would be best to get the knee fixed first.

1. The Tribunal also took into account the applicant’s wife’s evidence given both in relation to the applicant’s application and her own application. In particular, for completeness, the Tribunal also put information to the applicant’s wife in relation to her and the applicant having applied for protection visas.

2. The applicant’s wife told the Tribunal that her husband started working in Australia in 2015. She had nothing to do with that position. She stated that she does not want to stay in Australia and that the only thing she cares about is that her husband gets the treatment he needs and that her husband’s former employer stops threatening her, her husband, their family and friends and leaves them alone, because he has defamed their character. She said that he made them look like they were the worst people ever and it is all a lie. She referred to a petition in relation to the visa application, and that her husband’s former employer had contacted every single person who supported their application and even sent them personal documents about her husband’s WorkCover case to stop people supporting their position to receive medical treatment in Australia. She stated that it has been a very traumatising time for her and that she is a victim of her husband’s former employer. She has been told by the lawyers that they know he has contacts with the Colombian mafia. She said she was thrown into detention for two weeks, even though she did nothing wrong, because her husband’s former employer contacted the Department and told them lies and he does not want to have any responsibility for her husband’s work injury. She said that he gave them death threats and threatened her husband’s grandfather when he was still alive. She stated that she did have positive experiences in Australia at the beginning of their travels, but after her husband’s work injury and after her husband’s former employer’s threats, she has absolutely no interest in staying in this country. She does not want to stay here and she does not want to live here. She does not want to have anything to do with this country, and when they are done with the medical treatment, she wants to leave as soon as she can because it is traumatising to even be here and she wants it to be over. She said that she had so many other things on her mind, until the Tribunal brought it up, she completely forgot that the protection visa application was still going on.

3. Additionally, the Tribunal discussed with the applicant a list of names of persons he provided from whom the Tribunal could take evidence, all of whom were persons involved in the applicant’s medical treatment or associated legal proceedings. It was confirmed that the purpose of listing those witnesses was for those witnesses to confirm that the applicant is in a state of flux and that he is taking steps to resolve that state of flux. The Tribunal discussed with the applicant that on the basis that the Tribunal accepts that is the case, it did not consider it necessary to take specific evidence from the listed potential witnesses in that regard. The applicant’s representative agreed that there was no need to contact all of the witnesses but there might be a need to contact one or two persons after the opinion had been provided by the surgeon if the doctor did not give a conclusive report. The Tribunal noted that if the Tribunal accepts that there is uncertainty in relation to the timeframe for medical treatment, as it is suggested those witnesses would address, it is not necessary to hear from those witnesses.

4. At the conclusion of the hearing, the applicant asked the Tribunal if it would support his application if by 2 October 2018, he was able to provide a treatment plan and plane tickets showing their plans to leave. The Tribunal indicated that it might normally put some weight on a one way ticket back to Germany as supporting an intention to return to Germany, but that it is a matter for the applicant as to what they provide.

   Does the applicant have a genuine intention to stay temporarily for the visa purpose?

   Has the applicant complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa?

5. The conditions of the last held substantive visa, a Subclass 417 working holiday visa, held by the applicant were 8547 and 8548, which conditions prohibited work with one employer for more than six months without permission, and, prohibited study or training in Australia for more than four months.

6. The conditions imposed upon various subsequent bridging visas held by the applicant have included 8101 (no work), 8207 (not study), 8401 (report as directed), 8505 (reside at specified address), 8506 (notify change of address), 8508 (make valid visa application), 8510 (present valid passport), 8511 (present valid ticket) and 8564 (conduct condition).

7. The applicant’s evidence was that there was a matter of a few days when he was unlawful in Australia, which he did not realise at the time, when he was trying to obtain another visa, such that the applicant could possibly have been in breach of condition 8508. The applicant’s representative agreed that the period of unlawfulness was a period of four days. The Tribunal is satisfied that the unlawful period was only a few days.

8. There is otherwise no evidence before the Tribunal that the applicant has not complied substantially with the conditions of the last held substantive visa and subsequent bridging visas and accepting the applicant’s evidence that he was making arrangements at the relevant time to obtain another visa, the Tribunal is satisfied that the applicant has complied substantially with the conditions of the last held substantive visa and subsequent bridging visas.

   Does the applicant intend to comply with the conditions to which the Subclass 602 visa would be subject?

   and

   Is there any other relevant matter?

9. The applicant expressed an intention at hearing that he would not engage in work in Australia and would not engage in study (or training) for more than three months. The Tribunal accepts that the applicant therefore intends to comply with the conditions to which the Subclass 602 visa would be subject.

10. The Tribunal has carefully considered all of the matters raised by the applicant and his wife and by the applicant’s representative in oral and written submissions, including written submissions received after the hearing dated 1 October 2018.

11. The Tribunal notes that the applicant’s representative referred to a number of previous decisions of this Tribunal, in oral and written submissions. As discussed at hearing, the Tribunal considers that each matter must be considered on the basis of its own unique circumstances. While the Tribunal would seek to consistently apply the law in relation to similar factual matters, the Tribunal is not bound by a conclusion reached in relation to any previous matters and places little value on consideration of other matters with differing circumstances. Rather the Tribunal has considered the circumstances unique to the applicant in this matter. The Tribunal places weight on a number of matters as supporting the applicant’s position that he genuinely intends to remain temporarily in Australia for the purposes of medical treatment, including but not limited to:

    (a)  the plausibility that the applicant would wish to remain in Australia to have medical treatment for a work injury sustained in Australia, in circumstances where it is his understanding that he would not be entitled to cover for medical treatment in Germany for an injury sustained outside Germany;

    (b)  the medical treatment, and related legal proceedings, in relation to the applicant’s injury has been a long, protracted process, as might not be unexpected when a WorkCover claim is involved and when there have unsuccessful prior surgeries, and the continued progress of those matters is uncertain;

    (c)  the ties that the applicant and his wife have in Germany, including their parents, and the desire to see them again, as is also supported by the letter from the applicant’s parents-in-law in evidence before the Tribunal (as opposed to the lack of family or other personal ties in Australia);

    (d)  the applicant and his wife are German citizens with person of that nationality representing a low risk of immigration non-compliance; there is no civil disruption, lawlessness or political upheaval in the applicant’s home country and there are no economic incentives that might encourage the applicant to remain in Australia;

    (e)  the inability of the applicant and his wife to utilise their professional qualifications in Australia, qualifications which will be recognised either in Germany or Papua New Guinea;

    (f)    the applicant’s wife’s expressed desire to leave Australia as soon as possible, particularly given recent negative experiences in Australia, including being detained in immigration detention for a period and the issues canvassed in these Reasons associated with the applicant’s former employer’s actions against the applicant and his wife;

    (g)  the applicant’s emails applying for jobs in Papua New Guinea in early 2018;

    (h)  an acknowledgment of agreement to transport the applicant and his wife to Papua New Guinea as crew on a vessel in October 2019 (in light of the applicant’s no-fly status);

    (i)    the withdrawal of the applicant’s and his wife’s protection visas subsequent to the hearing of this matter.

12. As regards the applicant’s and his wife’s protection visa applications, as discussed at hearing, the Tribunal had some concerns with the applicant’s (and his wife’s) applications for permanent visas as being inconsistent with a stated intention to remain temporarily in Australia and did not necessarily comprehend the reasoning expressed for seeking those protection visas. Nonetheless, the Tribunal acknowledges the withdrawal from the protection visa process after the hearing by the applicant and his wife and does not place any adverse weight on the applicant seeking a protection visa, a process from which the applicant has now withdrawn.

13. The Tribunal has additionally taken into account the further documents received after the hearing including the statements from the applicant and his wife received on 2 October 2018, canvassing such matters as the fact that the applicant’s medical condition is not stagnating and that there is new information and developments arising constantly, including continuing changes to treating medical professionals.

14. One of the documents provided by the applicant on 2 October 2018 was a report from Dr Shepherd dated 31 August 2018 which refers to, amongst other things, an MRI scan of 13 June 2018. Dr Shepherd concludes in that report as follows (unedited):

    “I saw Manuel again today. I’ve seen him on 2 occasions in the past at the request of WorkCover for a report but I have not seen him for treatment previously. He has problems with his left knee.

    Manuel suffered an injury to his left knee in October 2015. It was to the superolateral aspect of his knee. His wound was attended to at Mossman Hospital. It was cleaned as an outpatient. He did however have persistent symptoms and I had a suspicion that he may have had some very low grade infection. He had the surgery in June 2016 where a mass of scar tissue was excised from the region of his wound and a lateral release performed. I presume he had his knee lavarged at the time. He continued to be symptomatic and had an arthroscopy on 22/2/2017. I don’t have detailed information about what was found or done at that time. He seems to have continued to have symptoms ever since. I saw him last about a year ago and he remained symptomatic. It seems that his symptom level has stayed about the same. He continues to get pain diffusely around his knee though if anything it’s more around the anterior aspect. Squatting, steps and slopes really stir him up. He doesn’t seem to have any mechanical locking or ACL type instability. He gets some painless clicking but also some sudden episodes of pain. Manuel is a well 35 year old man. The coronal plane alignment at his knees was intact. There was no effusion in his left knee today. He had scars around the lateral side consistent with his history above. His lachman and drawer tests were negative. His collateral ligaments were intact. There is quite significant wasting of his quadriceps. I reviewed his MRI’s from 5/5/2016 and 14/11/2016. His patellofemeral joint is normal. He has an MRI scan on 13/6/2018. It shows some chondral loss in the trochlear groove which was not present on his previous scans. The rest of his knees look intact. The articular cartilage in the medial and lateral components is intact. Both menisei and both cruciates are intact.

    Manuel had a laceration to his knee and may have suffered some grumbling infection but I’m sure that that has been successfully dealt with. He had a couple of procedures on his knee which didn’t seem to give him worthwhile symptomatic relief. Currently I think his symptoms are coming from some retropatellar osteoarthritis. This seems to have developed since November 2016. Currently his quads are quite wasted and this will greatly exacerbate symptoms from the patellofemoral joint. I’ve talked to Manual about his MRI findings and my opinion as outlined above. From a treatment point of view, I think he needs to work at building up his quadriceps on the left. If anything he should aim to get his quadriceps on the left to be better than normal to compensate for the structure of his knee which is not quite normal. He may get some relief from non-steroid and inflammatory drugs. I’ve given him my thoughts as outlined above.

    Yours sincerely

    [emphasis added by Tribunal]

15. The submissions dated 1 October 2018 sought that the Tribunal await the result of the then upcoming appointment with Dr Lawrie on 10 October 2018. An email from the applicant on 22 October 2018 stated that Dr Lawrie had not been satisfied with the quality of the MRI imaging results and that a further MRI was to be conducted on 23 November 2018 with a further appointment with Dr Lawrie on 26 November 2018 when Dr Lawrie would then plan the applicant’s surgery accordingly and produce a medical treatment plan. However, there is still no medical treatment plan in relation to further surgery before the Tribunal.

16. The applicant has been providing further details as to medical appointments since 2 October 2018. In the most recent email from the applicant of 8 November 2018, he confirmed an MRI head scan appointment on 9 November 2018 with follow up appointment on 12 November 2018. In one of the emails of 22 October 2018, the applicant provided confirmation of a further appointment with Dr Lawrie on 26 November 2018. However, these times and dates have now passed and the Tribunal has received nothing further from the applicant since the email of 8 November 2018, some three weeks ago.

17. Although neither the applicant nor his representative has specifically requested further time, given the request to await the appointment with Dr Lawrie on 10 October 2018, and then the further scheduled appointment with Dr Lawrie on 26 November 2018, the Tribunal considered whether it would be appropriate to further adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence including details of further appointments and/or treatment or recommended treatment.

18. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

19. The Tribunal has also taken into account its obligations to pursue the objective of providing a mechanism of review that is fair, just, informal, economical and quick.

20. The Tribunal has had regard to the fact that the visa application was refused on 31 July 2017, nearly 18 months ago. Further, it is now nearly 12 months after the requested time period sought for the visa (up until 31 December 2017) and nearly two months after 2 October 2018, the time within which to provide further evidence that was granted to the applicant at the conclusion of the hearing.

21. The Tribunal is satisfied that the applicant is aware of the importance of updating the Tribunal as to the current status of any medical evidence when known as the applicant has shown through updates to the Tribunal subsequent to the hearing. The applicant has indicated that he expected a surgery date to be set at the further appointment with Dr Lawrie on 23 November 2018, however, no advice of surgery being recommended by Dr Lawrie, or a date for surgery being set, has been provided. Rather, the most recent substantive medical evidence before the Tribuanl in relation to continuing treatment for the knee condition impacting the applicant is that of Dr Shepherd of 31 August 2018. As noted earlier in these Reasons, Dr Shepherd stated that the further treatment recommended is to build up supporting muscles to compensate for the structure of the applicant’s knee and the use of non-steroid and anti-inflammatory medication which may provide relief. It is not clear why treatment of that nature needs to be carried out in Australia, particularly given the applicant’s evidence that he has qualifications as a sports scientist himself and can do rehabilitation himself overseas.

22. In these circumstances, and given the additional time already allowed by the Tribunal, the Tribunal considers that the applicant has had sufficient time in which to address the issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.

23. As discussed with the applicant at hearing, the applicant originally sought the visa the subject of this application to remain in Australia until 31 December 2017. The Tribunal accepts the applicant’s evidence that at the time of indicating that date he was not aware of how the medical treatment timeframes would work and how uncertain such timeframes were. The Tribunal acknowledges, as submitted on behalf of the applicant, that Departmental policy recognises that further medical treatment visas can be granted if a visa holder continues to receive ongoing treatment beyond the duration of an initial medical treatment visa with the visa applicant’s intention remaining to depart Australia at the completion of the treatment.

24. Further, the Tribunal acknowledges the drawn-out process which the applicant has had in relation to medical treatment. The Tribunal also acknowledges the understandable desire of the applicant to undertake surgery, if recommended, in Australia if that surgery were covered as being as a result of a work injury sustained in Australia. However, now, nearly 18 months after the visa application, nearly 12 months after the requested duration for the visa has ceased, nearly three months after the hearing, and nearly two months after the further time allowed by the Tribunal, there is still no evidence as to when the proposed surgery will take place or that the surgery is recommended or required. Rather Dr Shepherd has recommended rehabilitation treatment and medication.

25. Further, despite the evidence of the applicant and his wife of wanting to depart Australia, as noted by the delegate in their decision (a copy of which the applicant provided to the Tribunal), the applicant has now been residing long-term in Australia since arrival in 2013, initially on a working holiday visa followed by numerous Bridging E visas, with continued visas applications, appeals to the Tribunal, the Minister and Members of Parliament suggestive of seeking to remain indefinitely in Australia.

1. Notwithstanding the matters upon which the Tribunal has placed weight in the applicant’s favour (as canvassed earlier in these Reasons), given that nearly 18 months have passed since the visa application and nearly three months additional time has passed since the date of the hearing, there is still no treatment plan outlining surgical recommended intervention such that the Tribunal is unable to be satisfied that the applicant genuinely intends to remain temporarily in Australia for the purposes for which the visa is granted.

2. Given the above findings, cl.602.215 is not met.

3. 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

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

   Susan Trotter
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   Schedule 2

   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.