Parra Sepulveda (Migration)

[2023] AATA 1687

Parra Sepulveda (Migration) [2023] AATA 1687 (8 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cristian Ignacio Parra Sepulveda

REPRESENTATIVE:  Mr Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  2213577

HOME AFFAIRS REFERENCE(S):          BCC2022/3445989

MEMBER:Angela Cranston

DATE:8 June 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 8 June 2023 at 15.17pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – supporting person for father-in-law – claim for own treatment made after applying for review – work-related bullying and stress – treatment covered by worker’s compensation – refusal of father-in-law’s visa affirmed in separate review – genuine temporary stay for purpose of visa – intention to comply with conditions – migration history – previous application for working visa withdrawn – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(4), (6), 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 29 September 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 26 August 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).

3. In his visa application, the applicant stated that he would be supporting a person who either holds, or is applying for a medical treatment/consultation, or donating an organ in Australia.

4. The delegate refused to grant the applicant the visa because it was not satisfied that there was such a person and the applicant applied for review (and provided a copy of the Department’s decision).

5. In a letter dated 14 September 2022, the following submission was made:

Cristian withdrew his 482 visa application recently in order to go overseas with the family, however during this period he got injured at work and still receiving treatment. He wanted to complete his treatment before he departs. The visa was only requested for short period. Viola’s father is also receiving treatment in Australia and has applied for medical treatment visa. The whole family wanted to depart together after completing treatment, but visas were refused.  

1. Prior to hearing, the Tribunal received a certificate of capacity/certificate of fitness stating that the applicant’s anxiety/stress started 23 March 2022 and that he had been bullied at work by his employer, felt stress and was anxious. The document was signed by Dr Muhammad Yaseen Memon and dated 26 August 2022.

2. The applicant appeared before the Tribunal on 8 May 2023 to give evidence and present arguments. The applicant was represented in relation to the review.

3. The applicant stated he had arrived in Australia in January 2012 on a student visa which he agreed last ceased on 15 March 2020. He stated he had applied for further visas because he was sponsored by a company where it had been good for a month but then soured in April 2022 when he first went to seek medical support and he was still in treatment. When asked why he had not identified that in his medical treatment visa dated 26 August 2022, he stated that he needed to help his father-in-law and did not think about himself because he was obtaining the treatment. He also stated that he initially came to Australia to study English, met his wife and had thought about staying in Australia however his last hope had been the sponsorship and after that he had lost the feeling to remain in Australia. He stated he had no intention to remain and only wanted to finish his treatment and get better.

4. The adviser stated the applicant had been exploited at work. He stated the applicant’s medical situation had not been included in his medical treatment visa application because the Department’s decision had been made in three days. The adviser stated it was partly his fault, he had essentially combined the applicant’s case with that of his father-in-law and had not provided the information in relation to the applicant and the application was decided in three days. He also stated the applicant only wanted to remain for 6 months and then go to Greece.

5. Following the hearing, the Tribunal wrote to the applicant stating that it had affirmed the decision of the Department to refuse his father-in-law a Medical Treatment (Subclause 602) visa and stated that the information was relevant to the review because, subject to his comments the Tribunal may find it is not satisfied that he meet subclause 602.212(4) as his father-in-law did not hold a Subclass 602 visa. The applicant responded providing evidence in relation to his own treatment (further certificates of capacity/certificate of fitness, a letter dated 25 March 2022 from Allcare Carnes Hill Medical Centre, and Allied Health recovery request dated 12 August 2022, a psychologist’s report dated 28 May 2023 and a submission from his adviser as follows:

   Cristian is currently undergoing a critical medical treatment that requires his wife and young daughter to be present to provide the necessary emotional and physical support during this challenging period. Their presence is invaluable in facilitating his recovery and ensuring that he can complete the treatment successfully.

   I would also like to emphasize that the entire cost of Cristian's treatment is being fully covered by iCare, a highly reputable workers' compensation fund. This financial support demonstrates the commitment of iCare to the well-being and prompt recovery of their insured individual, Cristian. With iCare assuming the financial responsibility, there will be no burden on the Australian healthcare system or taxpayers.

   Given the overwhelming evidence provided, including the extensive medical documentation, the psychologist's report, and the full financial coverage by I Care, I implore the Administrative Appeals Tribunal to grant Cristian's Medical Treatment Visa. By doing so, you will not only allow Cristian to access the critical medical care he urgently requires, but you will also enable his wife and daughter to support him effectively, which is essential for his overall well-being and recovery.

   I kindly request that the Administrative Appeals Tribunal carefully review the compelling evidence presented and make a compassionate decision that takes into account Cristian's urgent need for treatment, the vital support of his family, and the financial commitment of I Care. The approval of his Medical Treatment Visa will not only provide him with the necessary medical care but also ensure a smooth and successful recovery process.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

2. The Tribunal has considered the claims and supporting evidence that the applicant provided with his medical treatment visa application that indicated he wished to remain in Australia to support a person who either holds, or is applying for a medical treatment/consultation, or donating an organ in Australia. That person he stated was Christaki Kiako, his father-in-law.

3. In a separate decision, the Tribunal has affirmed the decision of the Department to refuse the applicant’s father-in-law a Medical Treatment (Subclause 602) visa, as the Tribunal was not satisfied that he genuinely intends to stay temporarily in Australia for the purposes of medical treatment, as required by cl 602.215 of Schedule 2 to the Regulations.

4. The Tribunal is not satisfied therefore that the applicant meets subclause 602.212(4) as his father-in-law does not hold a Subclass 602 visa.

5. After applying for review, the applicant stated it was he who needed the treatment, that he had anxiety/stress since 23 March 2022 and that liability had been accepted for psychological injury to him by his employer. 

6. For the sake of completeness, the Tribunal has considered these claims.

7. Since the applicant has not applied for a permanent visa the requirements of which the applicant appears to have met, the applicant does not meet cause 602.212(6) and accordingly, the requirement in clause 602.215 applies and the issue in this case is does the applicant have a genuine intention to stay temporarily for the visa purpose?

8. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In the present case, the applicant currently seeks the visa for the claimed purpose of medical treatment.

9. 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.

10. The applicant arrived in Australia on 1 January 2012 on a student visa. His last student visa ceased on 15 March 2020. Since then, he has applied for a 482 visa but that application has now been withdrawn.

11. The Tribunal must consider whether the visa applicant intends to comply with the conditions to which the Subclass 602 visa would be subject. The conditions to which a visa in the circumstances of this case would be subject are as follows:

    8101 – must not work in Australia

    8201 – must not engage in study or training in Australia for more than 3 months

12. There is no evidence before the Tribunal that the applicant did not comply with his student visas or bridging visa conditions.

13. While the Tribunal accepts the applicant has been seeking advice from the health profession because he advised he had been bullied at work and was seeking medical treatment for anxiety and stress since 23 March 2022, the applicant did not identify this in his medical treatment visa application lodged in August 2022. When asked about this at hearing, the applicant stated he needed to help his father-in-law and did not think about himself because he was obtaining treatment and his adviser stated it was partly his fault because he had essentially combined the applicant’s case with that of his father-in-law, however in the Tribunal’s view these explanations do not adequately explain the applicant’s silence if the applicant’s own alleged need for medical treatment and a medical treatment visa arose in March 2022.  Further the applicant’s evidence at hearing concerning further medical treatment now suggests that his medical treatment will be ongoing. The applicant’s past migration history means that the applicant ceased to hold a student visa on 15 March 2020 yet he continued to remain in Australia and unsuccessfully (because he withdrew his visa application) applied for further stay.  The Tribunal has considered the applicant’s evidence however given his migration history, the Tribunal on balance finds that the applicant is attempting to utilise the medical treatment visa pathway to maintain ongoing residence for an indefinite period and is not satisfied that the applicant genuinely intends to remain temporarily in Australia to obtain medical treatment.

14. The Tribunal is not satisfied that the applicant genuinely intends to remain temporarily in Australia to obtain medical treatment.

15. Given the above findings, clause 602.215 is not met.

DECISION

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

Angela Cranston
Member