PHAM (Migration)

PHAM (Migration) [2019] AATA 2674 (27 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr XUAN KHAI PHAM
CASE NUMBER:  1721424
DIBP REFERENCE(S):  BCC2017/3000450
MEMBER:Stavros Georgiadis
DATE:27 May 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 27 May 2019 at 6:41pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – no evidence to show applicant is medically unfit to depart Australia – Onshore Ministerial Intervention unsuccessful – lack of compliance in the past – intention to stay permanently –adverse migration history– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 116, 417
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 August 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 August 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).
The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant intends to remain in Australia temporarily for medical treatment and therefore, does not meet cl.602.215.
There was no appearance before the Tribunal by the applicant to give evidence or present arguments. The scheduled hearing of 27 May 2019 was cancelled following written submissions received on 21 May 2019 that the applicant remains aphasic from a stroke condition sustained in 2010 and that therefore, he could not provide any oral evidence. This is supported by various medical reports from treating practitioners discussed further below. Given these circumstances, the Tribunal decided to determine the matter on the papers on the basis of the written submissions made on behalf of the applicant and the documents before it.
The applicant was represented in relation to the review by his registered migration agent.
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 intends to remain in Australia temporarily for this purpose.
Is the applicant unfit to depart Australia?
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.
The Tribunal notes the applicant’s date of birth recorded on departmental documents of 22 November 1960. The Tribunal accepts from this that the applicant has turned 50 years of age. There is no evidence before the Tribunal from a Medical Officer of the Commonwealth that the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or condition. There is no evidence that the applicant has applied for a permanent visa in Australia which is a requirement under cl.602.212(6)(c) for any consideration of refusal of such visa for the purposes of cl.602.212(1).
On this evidence the Tribunal finds that the applicant does not meet the collective requirements set out in cl.602.212(6)(a) - (f). There is no suggestion that any of the other alternative sub criteria are relevant in this case.
Given the above findings, the requirements in cl.602.212(6) are not met to exclude subclause (1) of cl.602.215 [cl.602.215(2)].
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). As there is no such evidence from a Medical Officer of the Commonwealth therefore, the Tribunal must proceed to consider cl. 602.215.
The Department’s records confirm the applicant arrived in Australia on 16 October 2005, with his partner, SY MUI VONG, arriving subsequently on 25 November 2006, as holders of Subclass 457 visas valid for stay until 12 October 2009. While on shore, the applicant overstayed the grant but applied on 22 October 2009 for a further Subclass 457 visa which was granted on 14 December 2009.
However, on 21 June 2012 the applicant’s Subclass 457 visa was cancelled. Review of that decision by the Migration Review Tribunal (as it was then) in casefile matter 1209351 relating to the visa applicant resulted in a determination dated 17 December 2013 affirming the decision to cancel the applicant’s Subclass 457 visa. The reasons for that decision set out that the cancellation stemmed from a breach of Condition 8107 attached to the applicant’s visa - as follows (at paragraphs 6 to 10):
... “6. In this instance condition 8107 was attached to the applicant’s Subclass 457 visa. His visa had been granted on 14 December 2009 with an expiry date of 14 December 2012.
7. Condition 8107 requires, inter alia, that if the applicant ceases employment the period during which they ceased employment must not exceed 28 consecutive days.
8. It is not in dispute that the applicant suffered a stroke on May 31 2010 and has not returned to work since. On 14 June 2011 his employer terminated the applicant’s employment. The applicant has clearly ceased employment for a period that exceeds 28 days, that is, from 14 June 2011 until the visa was cancelled on 21 June 2012.
9. The representative denies the applicant breached Condition 8107. He submits that the Regulations require a positive act by an applicant to cease employment, and he refers to the fact the condition is phrased in an active voice. He submits that because the applicant ceased employment against his will, beyond his control and as a result of medical incapacity, he therefore lacked any intention to cease employment and the Tribunal should find he did not breach the condition. The Tribunal does not accept this submission. On a plain reading of the condition it is clear that it is the cessation of employment for a period in excess of 28 days that is all that is required. The intention or the reason for the cessation of employment is something that can be considered when weighing up whether to exercise the discretion to cancel or not cancel the visa, but is not something that informs whether the employment has ceased or not.
10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. ...”
Following this, the applicant and his partner remained in Australia and applied onshore for Protection visas on 10 January 2014. Those applications were refused on 30 October 2015 and on appeal, the Tribunal affirmed the decisions to refuse the visas on 23 December 2016.
On 19 January 2017, the applicant and his partner sought s.417 Onshore Ministerial Intervention and on 8 August 2017, the outcome was “Not Considered”.
On 21 August 2017, the applicant lodged the current Medical Treatment visa onshore, together with his partner who lodged her application as a support person seeking to satisfy cl.602.212(2) of Schedule 2 to the Regulations.
On 21 May 2019 the applicant lodged written submissions in support of the application together with the further documents listed below under the applicant’s written submissions at paragraph 3:
·3.1. Medical report of Ms Susan Lau, Psychologist dated 18 May 2019;
·3.3. Dr Anh Tuan Ngo’s medical notes for the period from 12 January 2017 to 21 May 2019;
·3.4. Letter of support from Adelaide Hills Council dated 21 May 2019;
·3.5. Letter of support from Ms Kathy Juers, ESL Tutor and Learning Support Teacher dated 20 May 2019;
·3.6. Letter of support from Mr & Mrs Hackett dated 20 May 2019;
·3.7. Tax invoice issued by Susan Lau Psychological Services dated 6 September 2017;
·3.8. Tax invoice issued by Dr Anh Tuan Ngo dated 19 May 2019;
·3.9. Lists of medication provided by Woodville Gardens Pharmacy for the period from 29 July 2017 to 4 May 2019;
·3.10. Payment receipt for the review applicant’s blood tests issued by SA Pathology dated 18 April 2019; ANZ bank account statement of the review applicant’s wife, Muoi Vong for the period from 7 December 2018 to 17 May 2019.
·3.12. Form 1507 completed by Dr Tuan Ngo dated 18 August 2017;
·3.13. Dr Tuan Ngo’s medical report dated 15 October 2013;
·3.14. Dr Les Koopowitz’s letter to Dr Tuan Ngo dated 9 August 2012;
·3.15. Dr Les Koopowitz’s letter to Dr Quang Lam dated 17 November 2011;
·3.16. Dr Miranda Jelbart’s letters to Dr Quang Lam dated 17 August 2011 and 20 October 2010;
·3.17. Dr Miranda Jelbart’s letter to the Delegate dated 11 July 2011;
·3.18. RGH’s Interim Separation Summary.
The Tribunal notes the Form 1507 and accompanying medical reports that confirm the applicant is receiving treatment for the stroke he sustained in May 2010. This has included prescribed medications for hypertension and depression, and also treatment for speech therapy and psychological services. The medical reports detailing the applicant’s condition in 2011 and 2012, record that the applicant’s distress comes from the uncertainty regarding his potential “to gain a full Australian visa”, and that grant of a permanent residence visa would aid his recovery and make him happier. From the more recent medical reports and written submissions, the Tribunal accepts that ongoing treatment is presently being provided to the applicant by Dr Anh Tuan Ngo and Clinical Psychologist, Susan Lau.
From Dr Anh Tuan Ngo’s medical file notes above, it is apparent that the applicant consulted Dr Ngo on 14 occasions during the period from January 2017 to 21 May 2019. The Tribunal notes the recent medical report of Dr Ngo dated 21 May 2019 which confirms the applicant’s ongoing aphasia, swallowing difficulties and hyperreflexia of the right arm with mobility difficulties. The Tribunal also accepts that the applicant is receiving ongoing treatment from clinical psychologist, Susan Lau for ‘emotional regulation and management of his feelings and thoughts’, as detailed in the medical report dated 18 May 2019.
The Tribunal carefully explored whether or not 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) - i.e. 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.
The Tribunal accepts that the purpose for the applicant’s stay in Australia is to receive medical assistance. The Tribunal notes the comments recorded in the decision for matter 1209351 relating to the applicant’s circumstances and the visa condition as follows: (at paragraph 13):
... “13. The Tribunal accepts the applicant’s stroke was something beyond his control and is a most unfortunate matter. The Tribunal accepts his breach of the visa condition was beyond his control. However, the extent of the breach is considerable, with him being unable to work since May 2010 and having his employment terminated in June 2011. ...”
The Tribunal places some weight on the circumstances that the applicant’s stroke was something beyond his control. The Tribunal accepts that there would be a degree of hardship that may be caused (to him and his partner) if the applicant is required to leave Australia and places weight on this also. The Tribunal finds however, that the applicant has not complied with Condition 8107 of his last held substantive (Subclass 457) visa. The Tribunal places substantial weight on this lack of compliance in the past for the specific purpose of cl.602.215(1)(a). The Tribunal considers this demonstrates a propensity to not comply with conditions placed on the proposed Subclass 602 visa.
The Tribunal has had regard to all the evidence and submissions made on behalf of the applicant, taking account of the declarations made at the time of application on Form 48ME - including that the applicant must abide by the conditions of the Subclass 602 visa. The Tribunal has considered the applicant’s submissions overall - that he seeks to remain temporarily only for medical treatment, that arrangements have been concluded to carry out the treatment required, that he has sufficient financial resources to meet treatment costs and also to support himself (and his partner) from savings as a former meat worker and also from the ongoing employment of the applicant’s partner with an Abattoir, that he will not be drawing on the public purse (given there is no access to Medicare entitlements), that no disadvantage will result to any Australian citizen or permanent resident, and all other relevant factors raised by the applicant. Having regard to the applicant’s circumstances as a whole for the purposes of cl.602.212(8), the Tribunal is not satisfied on balance, that there are compelling personal reasons that outweigh the requirements of the genuine visit criterion for the grant of a Medical Treatment Subclass 602 visa.
The Tribunal notes the substantial time the applicant has spent onshore since the need for medical treatment following his stroke in 2010. The Tribunal also notes the numerous Bridging visas E granted since cancellation of the applicant’s Subclass 457 visa finalised on 17 December 2013. The Bridging visas are granted in light of circumstances where ultimately, the applicant would depart Australia. In this particular case, the applicant has raised repeated unsuccessful challenges to continue to stay on in Australia including the Protection visa application and the unsuccessful request for Ministerial intervention. The immigration history over the years demonstrates a pattern of applications, appeals and attempts to remain on indefinitely, or at least long-term, in Australia. This is inconsistent with the legislated requirement of a genuine intention to stay temporarily only for the purpose for which the visa is granted. The Tribunal considers that the applicant’s actions are consistent with him seeking permanent or ongoing long term residence in Australia, that point to the absence of any intention to depart or stay temporarily for the purpose of medical treatment.
Having considered all the circumstances of this case collectively, 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); nor that there are compelling personal reasons for the grant of the visa.
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.
Stavros Georgiadis
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).

[2019] AATA 2674

27 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Intention