Niuoleava (Migration)
[2024] AATA 1461
•9 May 2024
Niuoleava (Migration) [2024] AATA 1461 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Alefosio Niuoleava
REPRESENTATIVE: Ms Thara Sujith Kumar
CASE NUMBER: 2306988
HOME AFFAIRS REFERENCE(S): BCC2022/4573532
MEMBER:Stephen Witts
DATE:9 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Statement made on 09 May 2024 at 12:05pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary entrant – diabetes – taking medication and undergoing liver function tests – length of time in Australia – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 May 2023 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 November 2022. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the applicant the visa in accordance with cl 602.215 because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of undergoing medical treatment.
The applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant genuinely intends to remain in Australia temporarily for medical treatment or related purposes.
The Tribunal has considered all the material before it including evidence provided prior to entering evidence given at the hearing.
The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision dated 3 May 2023.
In this decision it was asserted that the last substantive visa held by the applicant was a New Zealand citizen family relationship subclass 461 visa which ceased on 7 May 2020. It was asserted that the applicant is now on a bridging visa granted in association with his medical treatment subclass 602 application.
It was asserted by the delegate that it was stated by the applicant is working full-time providing for his family. It was also asserted that since the applicant arrived almost 6 years ago holding the above subclass 461 visa, he has not departed Australia and that his last substantive visa ceased more than three years ago.
It was also asserted by the delegate the applicant was in breach of cl 602.215(1)(b) because he was subject to condition 8101 and that the applicant had stated that he was working “every day of the week” and that therefore he had not met this condition.
It was asserted also that the applicant was invited to provide evidence as to whether he was a genuine visitor and that on 1 December 2023 a letter was sent by his wife to the Department stating that he has been diagnosed with diabetes, that she has three children from her first relationship and that she and the applicant have three children who were born in Australia. It was further contended by the delegate that it was stated that the applicant and his wife did not have family back at home and that the children are settling in Australia.
According to the delegate it considered this evidence and made a decision that the applicant does not genuinely intend to stay temporarily in Australia for the purpose of undergoing medical treatment.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
Included was a submission dated 2 May 2024 by the applicant’s representative stating that the applicant is a genuine visitor and that he is suffering from poorly controlled diabetes and abnormal liver function and that he requires specialised treatment and that it is requested that he be given three months in order to complete this medical treatment effectively and then depart Australia.
It was also stated that he should be granted a medical treatment visa to ensure he receives regular medications and specialised treatment, and that is the case that he did not comply with his visa condition 8101 stating that he was not to work, and that he did engage in employment in Australia in contravention of that requirement.
Also included was a letter from a medical practitioner dated 29 April 2024 stating that the applicant is a truck driver who has been suffering from “type II diabetes, hyperlipidaemia and abnormal liver function tests. He needs regular medication to prevent complication of diabetes”.
At the hearing the Tribunal had a discussion with the applicant regarding the application.
The applicant stated that he first came to Australia in 2010 and was on a 461 visa for most of the time he has been here in Australia stating that he was on a five-year 461 visa until the pandemic.
He stated that his wife first come to Australia in 2003 on a 444 visa and that she is a New Zealand citizen, and that they have three children aged 12,13, and 19, and that they have a grandchild aged 9 months old.
He stated that he does not have any other visa applications pending and when asked what his future intentions are he stated that he would like to stay in Australia for medical treatment for his diabetes and that he would like to stay in Australia with his wife and children. He stated that he would like to stay and see what happens next.
When asked about the extent of his medical treatment with the Tribunal putting to him that it appeared that his treatment consisted of undergoing liver tests and also taking regular medication, he agreed that that was the nature of the treatment that he was receiving. When asked why he could not return to his home country and have such treatment he stated that he just does not have anyone back in his home country and that he wanted to stay with his wife.
When asked what other family he had in Australia he stated that he has his father and also his mother’s relatives here in Australia and that he has siblings, but they all live in New Zealand or America.
When asked whether he was still working he stated that he ceased being a truck driver last year and that he spends most of his time helping with family and looking after his father. He stated that he was still living as a family man with his wife and children and that they all lived together and that they are maintaining themselves financially with his wife working two jobs and that one of his sons is also working.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6) which requires that an 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.
Clauses 602.215 and 602.212 are set out immediately below:
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.
Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:
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.
Clause 602.212 (6) (f) provides as follows:
“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
The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).
Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”.
The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).
The applicant was born on 15 June 1974. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.
Hence the applicant does not meet the criteria set out in cl.602.212 (6).
Accordingly, the Tribunal turns to cl.602.215.
The Tribunal has considered the evidence and submissions provided by the applicant and his representative as outlined above and turns to a consideration of this evidence.
The Tribunal has considered the applicant has stated, and has provided evidence, that his medical treatment for his diabetes consists of taking medication and undergoing liver function tests. When asked by the Tribunal as noted above whether he could undertake such treatment back in his home country he did not directly address this other than to say that he wants to stay with his wife.
The Tribunal has also considered that the applicant has been living in Australia since 2010 with his wife who is a New Zealand citizen, and that he has been here for 14 years. He stated that all three of his children were born in Australia. He stated also that he has no close immediate family back in his home country.
The Tribunal discussed the applicant’s general situation with him at the hearing and is concerned that the applicant would simply reiterate that he wishes to stay in Australia for medical treatment, and that he did not provide any other evidence as to whether or not he intends a genuine temporary visit for medical treatment except to say that he wants to stay in Australia with his wife and family.
The Tribunal has considered this matter very carefully and does not find the applicant’s protestations that he wants to stay here for medical treatment on a temporary basis, and, in his representative’s submissions at least, for a period of only three months before returning to his home country, noting that he has not been in his home country for 14 years. The Tribunal does not find this evidence credible.
The Tribunal after careful consideration finds that the evidence provided clearly demonstrates that the applicant is seeking visa pathways to achieve a longer and probably permanent stay in Australia with his family and that he has no incentive, in his own submissions, to return to his home country, and has no intention of ever doing so.
The Tribunal has also considered very seriously the need for the applicant to stay in Australia for his medical treatment and to be with his family for the treatment. The Tribunal finds that there was no evidence that the applicant could not easily receive the appropriate medical treatment in his home country of Samoa and that he does not need to stay in Australia for this medical treatment. The Tribunal has also considered that it would be advantageous for him to be able to manage his life here from Australia with his wife and undergo ongoing monitoring and treatment, however, it is not necessary for him to do so for ongoing medical treatment reasons, and that this lends weight to a contention that this medical treatment visa application is not genuine and that it is being made to maintain residence in Australia on an indefinite basis.
The Tribunal has also considered any compelling circumstances that the applicant may have and finds that there is no compelling reason why he would need to stay in Australia for medical treatment, or to be with his family for the treatment, noting also that his wife is not an Australian citizen and is in fact a New Zealand citizen, and that the family could relocate together back to his home country or back to New Zealand.
The Tribunal has considered this matter very carefully and finds that this is not a genuine application for a temporary visit to Australia to undertake medical treatment. The Tribunal finds that there is no reason why the applicant could not return to his home country and receive such treatment and therefore as outlined above this application is rejected.
Given the above findings, cl 602.215 is not met.
Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Stephen Witts
Member
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
0
0