Onah (Migration)

[2023] AATA 1002

Onah (Migration) [2023] AATA 1002 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tochukwu Clement Onah

REPRESENTATIVE:  Mrs Shefali Nandra (MARN: 1464717)

CASE NUMBER:  2209969

HOME AFFAIRS REFERENCE(S):          BCC2022/2085150

MEMBER:Catherine Carney-Orsborn

DATE:12 April 2023

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 12 April 2023 at 9:52am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – period of unlawful residence – unfit to depart Australia – limited medical evidence provided – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 362, 379
Migration Regulations 1994, 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 (the Department) on 20 June 2022 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 June 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) and attached to this decision.

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

4. On 15 March 2023 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 4 April 2023. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 intends to stay in Australia for the purpose for which the visa is granted.

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

9. 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.

10. The Tribunal has before it the Department and Tribunal files.

11. The Department file contains copy of the applicant’s application for a Medical Treatment visa, a 1507 Evidence of Intended Medical Treatment form dated 6 June 2022, a 956 form, copy of the biodata page of the applicant’s foreign passport, letter from treating psychologist dated 15 April 2019, applicant’s VEVO details as of 31 May 2022, copy of the Department’s natural justice letter dated 9 June 2022 to the applicant, copy of a Bridging visa granted to the applicant with grant date of 9 June 2022 and a copy of the delegate’s decision record.

12. The Tribunal file contains copy of the application for review of refusal to grant Medical Treatment visa, copy of the delegate’s decision record, receipts for payments to Advance Psychology, and a tenant trust ledger report from a real estate agent.

13. The applicant applied for a Medical Treatment visa on 8 June 2022. He stated in his application he intended to stay in Australia for the purpose of seeking psychology and CBT treatment between 7 June 2022 and 15 March 2023.

14. At the time of decision that time period had already lapsed.

15. The applicant provided the Department with his application a copy of a report from a treating psychologist dated 15 April 2019. In the letter it was stated that the applicant suffered from mood swings, clinical depression, and post traumatic stress disorder. The psychologist indicated that the applicant suffered from these conditions as a result of being assaulted, abused and intimidated while in detention at the Villawood Detention Centre in 2017.

16. The evidence submitted by the applicant to the Department regarding the intended medical treatment by way of a 1507 form was to see a psychologist. The form was dated 6 June 2022 and refer to the applicant as having seen a psychologist.

17. The Department wrote to the applicant in a natural justice letter dated 9 June 2022. The letter explained the concerns the delegate had in regard to the applicant’s movement records in Australia. That the applicant had first arrived in Australia on 27 July 2016 and had not left. That since that time the applicant had lodged an unsuccessful subclass 951 visa application with the Department and had a subclass 500 visa and a subclass 050 visa cancelled. That the applicant stayed as an unlawful non-citizen in Australia for a period of time and was kept in immigration detention.

18. The applicant did not respond to the Department’s natural justice letter.

19. The applicant applied for review of the refusal to grant him a Medical Treatment visa with the Tribunal on 8 July 2022.

    Is the applicant unfit the depart Australia?

20. 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.

21. There is no suggestion that any other alternative sub criteria are relevant to this case.

22. Evidence submitted to the Department indicates that the applicant suffers from depression. There is no evidence he was prescribed with medication and that the applicant intends to complete medical treatment by a certain date.

23. The applicant did not attend at the hearing to provide evidence.  If he attended the hearing the Tribunal would have discussed with the applicant any need for further medical treatment.  Whether he was able to depart Australia and whether he had any up-to-date medical reports.

24. The applicant is in Australia. He has not turned 50. He has not met the criteria for a permanent visa. There is no evidence before the Tribunal that he is medically unfit to depart Australia evidenced in writing by a Medical Officer of the Commonwealth.

25. After considering the evidence before it, the Tribunal not satisfied that the applicant is unfit to depart Australia.

26. Given the above findings, the requirements in cl 602.212(6) are not met.

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

27. 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.

28. As set out above the Tribunal has found that on the evidence before it, it is not satisfied that the applicant meets the criteria set out in cl.602.212(6).

29. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

30. The applicant applied for a Medical Treatment visa on 8 June 2022. He stated in his application he intended to stay in Australia for the purpose of seeking psychology and CBT treatment between 7 June 2022 and 15 March 2023.

31. The applicant provided to the Department with his application a copy of a treating psychologist dated 15 April 2019. In the letter it was stated that the applicant suffered from mood swings, clinical depression, and post traumatic stress disorder.

32. The evidence submitted by the applicant to the Department regarding the intended medical treatment by way of a 1507 form was to see a psychologist. The form was dated 6 June 2022 and refer to the applicant as having seen a psychologist.

33. No further medical reports or evidence were provided.

34. As the applicant did not attend the hearing the Tribunal was unable to clarify and discuss the above issues with the applicant.

35. The applicant is in Australia. He has not turned 50. He has not met the criteria for a permanent visa. There is no evidence before the Tribunal that he is medically unfit to depart Australia evidenced in writing by a Medical Officer of the Commonwealth.

36. There is nothing before the Tribunal which indicates that the applicant is gravely ill or in critical care, or, that the treatment sought is not available in his country of origin.

37. The Tribunal has considered the applicant’s previous unsuccessful applications, outlined above, to remain in Australia.  The Tribunal on the evidence before it is not satisfied that the applicant intends to depart Australia.  There are no compelling or compassionate circumstances before the Tribunal. 

38. On the evidence 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).

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

40. 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

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

    Catherine Carney-Orsborn
    Member

    
    

    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).

    Schedule 3

    3001 (1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)    For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    (d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)the day when that last substantive visa ceased to be in effect; and

    (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    3003If:

    (a)    the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)    on 31 August 1994, the applicant was either:

    (i)an illegal entrant; or

    (ii)the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)     the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

    (d)    there are compelling reasons for granting the visa; and

    (e)     the applicant has complied substantially with the conditions that apply or applied to:

    (i)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)any subsequent bridging visa; and

    (f)     the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)     the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004If the applicant:

    (a)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)    entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)     the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

    (d)    there are compelling reasons for granting the visa; and

    (e)     the applicant has complied substantially with:

    (i)the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)     either:

    (i)in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)     the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)    this Schedule; or

    (b) Schedule 6 of the Migration (1993) Regulations; or

    (c)     regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

    Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.