PILANIA (Migration)

[2020] AATA 3838

PILANIA (Migration) [2020] AATA 3838 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahendra PILANIA

CASE NUMBER:  1820821

DIBP REFERENCE(S):  BCC2018/2413425

MEMBER:Tania Flood

DATE:13 July 2020

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 13 July 2020 at 2:19pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary visitor – visit for medical treatment – age requirements – medical evidence of required medical treatment – intention to maintain ongoing residence in Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 28 June 2018 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 4 June 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 (the Regulations).

3. The visa was refused because the delegate was not satisfied that the applicant genuinely intends to remain in Australia temporarily for the purpose for which the visa is sought.

4. On 25 June 2020 the Tribunal wrote to the applicant pursuant to the requirements at s.359(2) of the Act and invited him to provide information about any medical treatment undertaken or due to be undertaken as well as copies of any relevant medical reports.  The applicant was also invited to provide any evidence which indicates that he has a genuine intention to stay temporarily in Australia for the purpose of seeking medical treatment.  The applicant was advised that if he did not respond to the Tribunal’s invitation by 9 July 2020 that he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.  The applicant did not respond to the Tribunal’s letter.

5. In light of the above circumstances, the Tribunal proceeded to make its decision on the available information.

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

   BACKGROUND

7. According to available information the applicant arrived in Australia on 3 July 2012 on a Business Short Stay (Subclass 456) visa.  He subsequently applied unsuccessfully for a [permanent] visa.  A Full Federal Court decision on 20 February 2018 recorded the outcome of his appeal as Minister win.  The applicant then appealed to the High Court and again the outcome was recorded as Minister win on 14 May 2018.  On 4 June 2018 the applicant lodged an application for a Medical Treatment visa.

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

   Is the applicant unfit to depart Australia?

9. 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.

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

11. According to the available information the applicant was born on 21 May 1984 which means he is currently 36 years old.  As the applicant has not turned 50 the requirements in cl.602.212(6) are not met.

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

12. 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).

13. As noted above, the Tribunal finds that cl.602.212(6) is not satisfied and therefore cl.602.215 applies.

14. On 4 June 2018 the applicant lodged an application for a Medical Treatment visa declaring that he has been suffering from depression and seeking to remain in Australia from 6 June 2018 until 5 September 2018 for treatment.  In a Form 1507 he states that he requires treatment in the form of counselling and behaviour therapy. The Department file contains no medical information or reports to support his application.

15. Despite the request to do so the applicant has not provided any further medical evidence to demonstrate that he requires medical treatment.  Nor has he provided any other documents relating to his intention to stay temporarily in Australia.

16. The delegate’s decision sets out the applicant’s history of visa applications, reviews and court appeals.  In the Tribunal’s view this history indicates a strong desire by the applicant to remain in Australia and he has not put forward any material to counter the implication of the history set out in the delegates decision record. 

17. In addition, the applicant has provided no medical evidence, recent or otherwise, to support his claimed need for medical treatment in Australia. 

18. The Tribunal has had regard to the considerations in cl.602.215 (a) to (c) and the matters set out above and has placed weight on the length of time the applicant has spent in Australia to date; the efforts he has made to remain in Australia and the absence of any medical evidence to support that he genuinely intends to stay temporarily in Australia for medical tests or treatment. 

19. The Tribunal is not satisfied that the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted.

20. Given the findings set out above, the requirements in cl.602.215 are not met.

21. 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

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

    Tania Flood
    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).