Radici (Migration)

[2018] AATA 201

Radici (Migration) [2018] AATA 201 (7 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anthony Angelo Radici

CASE NUMBER:  1703941

DIBP REFERENCE(S):  BCC2016/2617416

MEMBER:Tigiilagi Eteuati

DATE:7 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 07 February 2018 at 7:09pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Evidence of proposed or upcoming medical treatment – Adjournment requests – Inconsistent reason for adjournment – Immigration legal assistance

LEGISLATION
Migration Act 1958, ss 65, 275, 280
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 Immigration on 13 February 2017 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 5 August 2016. 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 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, namely to undergo medical treatment.

4. When the applicant applied for the visa in August 2016 he indicated in his application form that Jessica Davis had assisted him in completing the form. On 25 August 2016 Jessica MV Davis of LexiLaw wrote to the Department in response to a Departmental request for the applicant to provide further information regarding his application for a visa. Ms Davis indicated that she acted for the applicant. After this it appears that Ms Davis corresponded with the Department as the applicant’s representative in relation to his visa application.

5. When the applicant applied for review with the Tribunal on 6 March 2017 the applicant indicated in his application form that he was represented by Robert Butler of “Lexi Law Solicitors” in relation to the review application.

6. On 8 May 2017 the Tribunal received an email from a Jessica MV Davis of Lexi Law asking the Tribunal to provide legal advice as to whether there was any prohibition on the applicant making a partner visa application before his “Appeal has been finalised.” The Tribunal registry replied that its function was limited to reviewing administrative decisions. I note that Ms Jessica Davis was not the applicant’s representative.

7. On 26 October 2017 the Tribunal Registry sent an email to Mr Butler indicating that it had come to the Tribunal’s attention that he did not appear to be a registered migration agent and therefore appeared not to be able to provide the applicant with immigration assistance. The email stated that Mr Butler could however continue to receive documents as an authorised recipient.

8. On 15 November 2017 the Tribunal received an email from Ms Jessica MV Davis, this time of “DAVIS WORCHESTER & CO Solicitors”, attaching an “appointment of Authorised Recipient for Mr Radici.” The attached form indicated that the applicant appointed a Hong He, of “WORCHESTER PTY LTD” as his authorised recipient not his representative. The box in the form for appointment of a representative was unticked and the box in the for the following authorisation was ticked “I appoint the person whose details are provided below to act as my authorised recipient. I do not wish to appoint this person as my representative.” Thus up until this point the applicant continued to be represented by Mr Butler of Lexi Law. Ms He had become his authorised recipient.

9. On 5 January 2018 the applicant was sent a hearing invitation inviting the applicant to attend a hearing on 23 January 2018 at 1pm. As Ms He was the applicant’s authorised recipient the invitation was sent to Ms He.

10. On 19 January an email was received from a Ms Nancy He of a third firm, this time “WORCHESTER & CO Solicitors”. It appears that “DAVIS WORCHESTER & CO Solicitors” and “WORCHESTER & CO Solicitors” are distinct firms as they have different contact details, addresses and principal solicitors. The Tribunal assumes that Nancy He is an alias or pseudonym used by Ms Hong He, the applicant’s authorised recipient. I note again that Ms He was not the applicant’s representative, she was his authorised recipient. Attached to the email was an undated letter from Nancy He.

11. The letter indicated that the applicant had been in a car accident in June 2016 and that the applicant had lodged an insurance claim with QBE. The letter indicated that QBE had requested further information from the applicant before a conference “to be scheduled within the next few weeks” in relation to the insurance matter. Ms He requested an adjournment of the hearing for 6 weeks “Considering our client current situation.”

12. Attached to the email was 122 pages of “Progress Notes Inpatient” which appear to be notes in relation to the applicant’s treatment in hospital in June and July 2016. The notes were not referred to in the letter and no explanation was given as to why they were provided to the Tribunal.

13. As neither the insurance matter nor the “Progress Notes Inpatient” from mid-2016 had any obvious relevance to the decision under review, an officer of the Registry telephoned Ms He for clarification as to why an adjournment was sought. Ms He provided a very different reason for the adjournment, suggesting that the applicant needed an adjournment because he was unfit to attend the hearing on 23 January owing to injuries he suffered in the car accident in 2016. The Registry officer asked Ms He whether she would provide evidence supporting this claim and she said she would do so that afternoon 19 January 2018. No evidence in support of Ms He’s claim was ever received.

14. On 19 January 2018, the Tribunal wrote to the applicant, via Ms He, indicating that it had considered his application for an adjournment but had refused the application because the information and evidence provided to the Tribunal was insufficient for the Tribunal to be satisfied that it should grant an adjournment. The letter indicated that the hearing would proceed on 23 January at 1pm.

15. On the morning of the hearing the Tribunal received a number of telephone calls from Mr Butler, the applicant’s representative. During the first call, Mr Butler informed the Registry that his client wished to withdraw his application before the hearing. The Registry officer informed Mr Butler that he would need to put his withdrawal request in writing. Mr Butler asked whether he should advise the Australian Government Solicitor (AGS) of the withdrawal and was informed that proceedings before the Migration and Refugee Division (MRD) of the Tribunal involved an inquisitorial process and that AGS had no role in the matter.

16. Mr Butler called back a short time later and this time indicated that his client now did not wish to withdraw but wanted the matter to be adjourned. It does not appear that the applicant gave a reason for the adjournment during the call.

17. The Tribunal then received an email at 9.55am attaching a letter from Mr Butler, this time of ”DAVIS WORCHESTER & CO Solicitors.” The letter indicated that “the principal with conduct of this matter, Ms Jessica Davis, has been delayed in Hawaii.” The letter indicated that Ms Davis would not return until the evening of 24 January 2017 and requested that the matter be relisted on 29 January 2017. The Tribunal member constituted to hear the review was required to sit on the hearing of another matter from 10 am and did not have sufficient time to consider the application. At this point the Tribunal Member had concerns about adjourning the matter to allow Ms Davis to attend because she was not the applicant’s representative and was not a migration agent and as such could not appear at the hearing to assist the applicant. The member told a Registry officer to call Mr Butler and tell him that the member was in a hearing and may not have sufficient time to make a decision on the application before the hearing, that the hearing would go ahead and that the Tribunal could hear from he or the applicant as to whether to adjourn the matter at the hearing.

18. This information was relayed to Mr Butler and Mr Butler indicated that he wished for the matter to be dismissed. He indicated to the Registry officer that he wished for the matter to be dismissed rather than withdraw from the matter because he believed that this would give the applicant more time in Australia (presumably so that he could continue to pursue his insurance claim onshore). Mr Butler asked whether he could seek leave to appear or whether the authorised recipient should attend and indicate that the applicant had no further submissions. The Registry officer indicated that he could not assist Mr Butler with these matters.

19. Neither the applicant nor his representative appeared at the hearing at 1pm. The Tribunal has taken the applicant’s failure to appear at the hearing and Ms Butler’s indication that he wished for the matter to be dismissed for non-appearance as a withdrawal of the applicant’s adjournment application. Even had this not been the case, the Tribunal would have refused the application on the basis that Ms Davis was not the applicant’s representative and was not a migration agent and so would not have been able to appear at the hearing to assist the applicant even if she were in Australia at the date of the hearing.

20. The Tribunal notes that at  3.22pm, the Tribunal received a further email from Mr Butler, this time of “WORCHESTER & CO Solicitors” in which he appeared to advance an argument that lawyers who were not migration agents could appear for and assist applicants in review proceedings before the MRD of the Tribunal. He requested advice from the Tribunal as to whether his assertions were correct.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

23. In his visa application form the applicant indicated that he was applying for the visa as a person seeking to obtain medical treatment.

24. 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(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:

    ·the arrangements for treatment have been concluded

    ·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia

    ·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community

    ·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and

    ·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.

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

26. 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).

27. The Question in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose of obtaining medical treatment.

28. The Tribunal has no information as to whether the applicant has complied substantially with the conditions of his last held substantive visa or any subsequent bridging visa. For the purpose of this decision the Tribunal is willing to proceed on the basis that the applicant did comply with the conditions of his previous visas and intends comply with the conditions to which the Subclass 602 visa would be subject.

29. The difficulty in this matter is that the applicant has provided no evidence of any medical treatment after 2016 or any evidence of proposed or upcoming medical treatment. The delegate’s decision, which the applicant provided to the Tribunal, indicates that the Department requested, on numerous occasions, evidence of his intentions to remain temporarily for the purpose for which the visa would be granted. This evidence was not provided despite the applicant’s representative indicating to the Department in December 2016 that the relevant evidence was being gathered.

30. The applicant applied for review of the delegate’s decision on 6 March 2017 and as at the time of this decision, the applicant has still provided no evidence of any medical treatment after 2016 or any evidence of proposed or upcoming medical treatment. This is despite Ms He’s assertion that the applicant could not attend the hearing because of injuries suffered in 2016 and her assurance that she would provide evidence on 19 January 2018 of the applicant’s inability to attend the hearing.

31. The Tribunal considers that the reason that no evidence of proposed or upcoming medical treatment has been provided is that there is no proposed or upcoming treatment planned. The Tribunal considers that, given the various unmeritorious applications for adjournments, the complete failure to provide any evidence relevant to the matter at hand and Mr Butler’s admission that he wished for the matter to be disposed of, first by indicating that the applicant wished to withdraw his application and then by indicating that he wanted the matter dismissed for non-appearance, the applicant’s application had no merit and was made simply to extend the applicant’s time in Australia.

32. The Tribunal considers that the adjournment requests and the various inconsistent reasons for the requests were disingenuous and that there was never any intention by the various solicitors (one who was also a migration agent) involved in the case to advance a case on the merits before the Tribunal. The Tribunal is also concerned that the lawyers involved in this case who were not migration agents may have been providing immigration assistance in breach of section 280 of the Act in preparing for proceedings before a review authority in relation to a visa application. It does not appear that they were permitted to provide such assistance as “immigration legal assistance” under section 280(3) as “immigration legal assistance” only includes preparing for proceedings before a court and not preparing for proceedings before a review authority. Section 275 of the Act defines “review authority” as meaning the Tribunal or the Immigration Assessment Authority.

33. Similarly, the Tribunal is concerned that Ms He was purporting to represent the applicant as, although she was a migration agent, she was never appointed as the applicant’s representative.

34. The Tribunal will consider whether the solicitors involved in this matter should be referred to the relevant bodies for possible disciplinary action. Similarly, the Tribunal will consider whether to also refer Ms He to the Migration Agents Registration Authority for possible disciplinary action.

35. As the applicant has provided no evidence of any medical treatment after 2016 or any evidence of proposed or upcoming medical treatment, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted, namely for obtaining medical treatment.

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

37. 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

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

    Tigiilagi Eteuati
    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).