Mozammel (Migration)

[2021] AATA 812

Mozammel (Migration) [2021] AATA 812 (4 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Mozammel

CASE NUMBER:  1902711

HOME AFFAIRS REFERENCE(S):          BCC2018/5861526

MEMBER:Melissa McAdam

DATE:4 March 2021

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 04 March 2021 at 11:56am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – visa history, including reviews and appeals – no valid visa currently held – age requirement – no arrangements for present or future treatment – previous application for permanent visa and stated intention to stay in Australia permanently – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 January 2019 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 applied for the visa on 28 December 2018. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

   Visa Application

3. The following is a summary of the information the applicant provided in his visa application:

   a.He is a 31 year old man from Bangladesh.  He has never married.

   b.He lives in Rockdale, NSW.

   c.He wishes to remain in Australia between 24 December 2018 and 23 February 2019.

   d.He is applying for the visa as a person who will undergo medical treatment.

   e.He will be under medical care between 24 December 2018 and 23 February 2019.

   f.He has been suffering from depression. Dr Shamsul Alam will treat him.

   g.He will use his own funds to support himself.

4. A Form 1507 was completed by Dr Shamsul Alam and stated the following:

   -The applicant’s medical condition requiring treatment is “depression, anxiety, stress”.

   -The treatment the applicant will receive is “counselling, CBT”.

   -The name of the treating specialist is Ms Amin Ahmed.

5. The delegate refused to grant the visa. In the decision the delegate outlined the following:

   -On 28 March 2013, the applicant arrived in Australia as an illegal entrant and was refused immigration clearance at the border.

   -On 11 May 2013, the applicant appealed to the Minister and was subsequently granted a Bridging Visa E (subclass 050) on 22 May 2013.

   -On 20 June 2013, the applicant applied for a permanent visa. This was refused on 30 September 2014. The applicant sought review at the High Court on 04 April 2018, and this resulted in a Minister win on 13 June 2018.

   -On 19 July 2013, the applicant submitted another appeal to the Minister for consideration and was granted a Bridging Visa E on 22 July 2013.

   -On 06 July 2018, the applicant lodged a Medical Treatment (subclass 602) visa application. This was refused on 13 August 2018.

   -The applicant’s Bridging Visa E granted by the Minister ceased on 24 March 2016, and he does not currently hold a valid visa.

   -The documentation provided in support of the medical treatment visa application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state he must remain in Australia for ongoing consultation. Information provided does not state that the treatment he was seeking is unavailable outside of Australia.

   -In the Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate his intention or incentive to depart Australia now or in the near future. Departmental records confirm that he had unsuccessfully applied for a permanent visa onshore and have taken every opportunity to present his case or circumstances for review.

   -The applicant had previously breached visa conditions and also remained unlawfully in Australia for a considerable period of time and did not contact the Department to resolve or regularise his immigration status.

   -The delegate found that the applicant’s adverse migration history strongly indicated that he did not intend to remain temporarily in Australia for the purpose of receiving medical treatment and that he was seeking a visa pathway to remain in Australia.

   -At the time of decision, the applicant had not presented any personally compelling or exceptional circumstances to warrant departure from the legislative requirement of the genuine visit criterion which is mandatory for the grant of a Medical Treatment visa.

   -The delegate found that the applicant was attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that he did not genuinely intend to remain in Australia on a temporary basis.

   -The delegate was not satisfied that the applicant met the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.

   Information to the Tribunal

6. The applicant appeared before the Tribunal on 4 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  The following is a summary of the information the applicant provided at the hearing:

   a.His situation is very severe. He has no Medicare card and receives no Centrelink payments.  His parents are very sick overseas and he is going through trauma.  He will not return to Bangladesh because his life is at a risk. He will face political problems and be beaten.

   b.The Tribunal asked the applicant why he did not depart Australia after February 2019. The applicant replied that if February 2019 was written in his visa application then it is a mistake. He wants to stay in Australia. He has no intention to leave Australia. He previously applied for a permanent visa.

   c.He has chest pain and back problems but he has no Medicare card so he is unable to receive medical treatment or to work.

   d.He previously worked at the airport for three years. Now employers tell him he cannot work unless he gets a different visa.

   e.He has not made arrangements for medical treatment because he needs to get a new visa. He can’t get a Medicare card unless it is issued with a new visa.

   f.He supports himself in Australia by borrowing money from friends and helping people who pay him whatever they want to pay.

   g.He doesn’t intend to return to Bangladesh even if he has to die here.  He intends to stay here permanently and get a permanent visa.  He wants to work permanently here.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is the applicant unfit to depart Australia?

7. 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.

8. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

9. The applicant was born in 1990 and is 31 years old.  He therefore has not turned 50 so does not meet the requirements of cl. 602.212(6).

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

10. 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).

11. Clause 602.215(1) sets out the following:

    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.

12. The applicant does not hold a valid visa.  The applicant gave evidence that he has been working by helping people who give him money.

13. The Tribunal notes the applicant has made no arrangements for present or future medical treatment in Australia.  He therefore does not meet the requirements in cl.6012.212(2) for the grant of a medical treatment visa, yet he has made no efforts to depart Australia.

14. The applicant has stated he has no intention of departing Australia and that he intends to remain here permanently. He has not departed Australia despite his unlawful status here, his lack of right to work, his lack of access to health care, and the ill-health of his parents in Bangladesh.

15. In all the circumstances the Tribunal is not satisfied that the applicant has an intention to depart Australia.

16. On the information before it the Tribunal is not satisfied that 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).

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

18. 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

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

    Melissa McAdam
    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).