Putra (Migration)

[2022] AATA 4640

Putra (Migration) [2022] AATA 4640 (30 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rengga Pramana Putra

CASE NUMBER:  2108928

HOME AFFAIRS REFERENCE(S):          BCC2021/1324105

MEMBER:Nicole Burns

DATE:30 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.215 of Schedule 2 to the Regulations

Statement made on 30 November 2022 at 2:30pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – previous application for a permanent visa – period of unlawful residence – ongoing relationship with a New Zealand citizen – family ties to Indonesia – evidence of medical treatment – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
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 on 9 July 2021 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 28 June 2021. 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. The delegate refused to grant the applicant the visa because they were not satisfied that he genuinely intended to remain in Australia temporarily for the purposes of medical treatment as required by cl 602.215.

4. The applicant appeared before the Tribunal on 29 November 2022 via video link, where he gave evidence and presented arguments about the issues in his case. The Tribunal also received oral evidence from his wife, Ms Sally Yusuf.    

5. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 satisfies the requirements of cl.602.215 which requires that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

7. The applicant is a 34-year-old Indonesian national.  He applied for a medical treatment visa on 28 June 2021 to stay in Australia until 24 June 2022 for the treatment of infertility through IVF.[1]

   [1] According to information contained in Form 1507 (Evidence of intended medical treatment), on the Departmental file.

8. The applicant’s immigration history (based on Departmental records) is recorded in the delegate’s decision record[2] as follows:

   ·The applicant last arrived in Australia almost three years ago as the holder of a visitor (Subclass 600) visa valid for a temporary visit to Australia for three months.

   ·The applicant has not departed since that day.

   ·Whilst onshore the applicant has demonstrated an intention to remain in Australia long term by applying for a NZ Citizen Family Relationship (Subclass 461) visa.

   ·The application was recently refused on 5 February 2021.

   ·The applicant then did not comply with visa validity and remained in Australia as an Unlawful Non-Citizen for over three months until making the application for a Medical Treatment (Subclass 602) visa.

   [2] A copy of which was provided to the Tribunal on review.

9. Noting this immigration history and the amount of time already spent in Australia, the delegate was not satisfied the applicant genuinely intended to stay temporarily in Australia for the purposes for which the medical treatment visa would be granted.  The delegate  considered the fact the applicant had applied for a long-term visa on shore and had remained in Australia as an unlawful non-citizen indicated that he intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis.  His visa application was refused on 9 July 2021.

10. The Departmental files contains a written statement from the applicant provided to the Department in response to a letter from the delegate setting out concerns with his immigration history.  In his statement the applicant states, among other things, that he and his wife have been wanting to have a child since they married on 15 June 2018; they have tried every treatment and the only option left is IVF; IVF treatment in Australia is more comprehensive and experienced than in Indonesia; and he cannot return to Indonesia due to COVID-19 cases. 

11. Additionally the applicant explains that he was unlawful due to a mistake: that is he did not see the email from the Department requesting he undertake a medical check-up in relation to his Subclass 461 visa application until around three months after the visa was refused.  As soon as he discovered that was the case, he quit his job.  He was adamant that he did not intend to stay and work illegally in Australia.

12. On review the applicant provided an undated letter to the Tribunal in which he set out his circumstances and submissions, similar to what he had stated in his written statement to the Department.  He also provided copies of his and his wife’s resume, and a copy of his employment contract (with IFM Services Pty Ltd), dated 30 September 2021.  

13. At hearing the Tribunal discussed the applicant’s immigration history with him (and his wife), his medical issues and other related matters.  They explained that they had applied for the medical treatment visa in order for them to undergo IVF treatment to start a family.  They had been trying to fall pregnant since they married in mid-2018 but to no avail.  They had consulted several doctors and looked into IVF treatment and presently are trying to save enough money in order to undertake IVF, given it is expensive to do so.  Their work – both in the hospitality field – was interrupted due to COVID-19 however they both have jobs now, working as fly in fly out (FIFO) workers in Karratha, northern Western Australia, whilst living in Perth. 

14. With respect to his immigration history, whilst the applicant acknowledged he did overstay, it was only briefly and inadvertent as he had applied for a Subclass 461 visa and missed an email from the Department requesting that he undertake requisite medical tests.  He said it was only when he checked the status of the application in relation to a new job that he discovered the Subclass 461 visa application had been refused, and he had been unlawful for several months.  By that stage it was too late to apply for a review of that decision.

15. The applicant told the Tribunal he has worked largely since he last arrived in Australia in early August 2018, in hotels in Perth and now as a service attendant in Karratha as a FIFO worker.  When he was unable to work – whilst holding a visitor visa initially and in relation to a bridging visa which contained a ‘no work’ condition – he was financially dependent on his wife, who is a New Zealand citizen and works in hospitality and housekeeping, also as a FIFO.

16. The applicant told the Tribunal he still wants the visa in order to undertake IVF treatment in the hope to have a child.  He will then return to Indonesia, where all of his immediate and extended family live, and look into options to return to Australia, lawfully.  He said he would like to live in Australia permanently with his wife but wants to do so properly.  He overstayed in the past due to an honest mistake.

    Is the applicant unfit to depart Australia?

17. Clause 602.212 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.

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

19. The applicant was born on 14 May 1988 making him 34 years of age.  As such the Tribunal is satisfied he has not turned 50 and therefore does not satisfy the requirements in cl 602.212(6).

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

20. 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).  For reasons above the Tribunal has found he does not satisfy cl 602.212(6).

21. The Tribunal has had regard to whether the applicant complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa held (cl.602.215(1)(a) of the Regulations). The last substantive visa held by the applicant was a visitor (Subclass 600) visa which ceased on 4 November 2018, and he has held a series of bridging visas since. There is no evidence the applicant has failed to comply substantially with the conditions to which those visas were subject.  The Tribunal found the applicant a credible witness at hearing and accepts his oral evidence that he was financially dependent on his wife during the periods he was unable to work in Australia.  This was corroborated by his wife’s oral evidence to the Tribunal. 

22. The Tribunal has gone on to consider whether the applicant intends to comply with conditions to which the Subclass 602 visa would be subject (cl.602.215(1)(b) of the Regulations).

23. According to the Department Procedural Instruction,[3] a medical treatment visa would usually be subject to conditions 8101 and 8102 (restrictions on work and study or training) and condition 8503 (no further stay condition). There is no evidence that the applicant intends to study while in Australia. With respect to work, at hearing he said if the visa is granted and includes a ‘no work’ condition, he will abide by it, and be supported financially by his wife, as he has in the past. The Tribunal accepts his evidence in this regard and accepts that he will abide by the ‘no work’ condition if his medical treatment visa is granted.

    [3] Department of Home Affairs, Procedural Instruction, Sch2 Visa602-Medical Treatment.

24. The Tribunal notes the delegate considered the applicant had an adverse immigration history due to him remaining in Australia as an unlawful non-citizen for over three months in the period between having his Subclass 461 visa application refused and applying for the current medical treatment visa.  The applicant has explained this was due to an honest mistake – not realising the decision had been made (and missing the email request to provide medical examination results) – not a deliberate one.  The Tribunal accepts his explanation in this regard, as it found him a credible witness at hearing and given the fact that otherwise he does not appear to have an adverse immigration history.   

25. Given these findings the Tribunal has gone on to consider ‘any other relevant matter’ referred to in cl.602.215(1)(c) of the Regulations.  The Tribunal notes a ‘genuine’ visitor is not defined in the Act, but Departmental policy envisages that an applicant should have a genuine intention to leave Australia at the end of the medical treatment plan. It is noted that a medical treatment visa should not be granted to applicants who intend to remain in Australia for a longer period to, for instance, maintain ongoing residence in Australia. This would be, in the Tribunal’s view, a ‘relevant matter’ for the purposes of cl.602.215(1)(c) of the Regulations.

26. In this case, the applicant told the Tribunal he will return to Indonesia at the end of the medical treatment where his parents, brother and sister live (in Jakarta), along with several extended family members.  The Tribunal accepts his evidence in this regard and accepts he has strong family ties to Indonesia which provide a significant incentive for him to return there. It also accepts he has an education and work experience there.

27. The Tribunal accepts the applicant wishes to remain in Australia to be with his wife to undertake IVF treatment.  As discussed at hearing, the Tribunal has some concerns in this regard given they do not appear to have started treatment as yet, despite applying for the visa on this basis over a year ago.  The applicant’s wife explained the delay is primarily due to financial reasons and they plan to start the process soon. 

28. At hearing the applicant acknowledged that he and his wife have settled in Australia, and wish to live here in the foreseeable future, which is why he applied for the Subclass 461 visa.[4]  He hopes he may be able to apply again offshore in the future, and in the meantime wants the Subclass 602 visa to undertake IVF treatment in Australia with his wife. 

    [4] A temporary visa, for a person who is not a New Zealand citizen but is a member of a family unit of a New Zealand citizen and allows the person to live and work in Australia for five years. (homeaffairs.gov.au)

29. Ms Yusuf told the Tribunal she was born in New Zealand and lived there until five years of age before moving to Indonesia (where here parents are from).  When she was an adult, she had to renounce her Indonesian citizenship in order to keep her New Zealand citizenship, as Indonesia does not acknowledge dual nationality.  She therefore may face difficulties living in Indonesia and considers it likely she and her husband may have to live apart for some time if the visa is refused and he has to return to Indonesia, which will affect their attempts to fall pregnant.  

30. The Tribunal accepts that the applicant has been in Australia for a reasonably long period of time (since mid-2018) and has applied for a Subclass 461 visa to stay for another five years or so.  He and his wife have been upfront about their desire to live in Australia, although indicated they want to do so legally.  Apart from the applicant remaining in Australia as an unlawful non-citizen for around three months until making the application for the Subclass 602 visa, there is nothing to suggest he has circumvented the proper migration channels in the past or not abided by relevant visa conditions.  He has explained the circumstances that led to him being unlawful for around three months, which the Tribunal accepts. 

31. When assessing whether the applicant has a genuine intention to leave Australia at the end of the medical treatment plan the Tribunal notes the plan to try and fall pregnant through IVF is somewhat open ended, and there is no guarantee of success.  Nonetheless, the Tribunal accepts the applicant is genuine in his stated wish to return to Indonesia once they have at least tried to fall pregnant via IVF in Australia.

32. On the evidence before it and for the reasons above, the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl 602.215 are met.

33. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

    decision

34. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

    ·cl 602.215 of Schedule 2 to the Regulations.

    Nicole Burns
    Member