RAUT (Migration)

RAUT (Migration) [2020] AATA 3584 (30 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bikal RAUT
CASE NUMBER:  1926100
DIBP REFERENCE:  BCC2019/4150575
MEMBER:Rosa Gagliardi
DATE:30 July 2020
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 30 July 2020 at 10:45am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – unfit to depart – genuine temporary entrant – immigration history – work history – depression – steps taken to seek assistance for condition – access to mental health services in Nepal – intention to comply with visa conditions – ties to Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 3 September 2019 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 2019. 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 applicant did not meet cl.600.212(6) and cl.600.215.
The applicant appeared by telephone before the Tribunal on 17 July 2020, to give evidence and present arguments.
The applicant claimed at hearing that he was represented by a registered migration agent but the Tribunal has found no such record, even though the applicant was granted additional time to have his claimed migration agent submit the relevant authorisation form.
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 Tribunal’s inquiry involves making an assessment about:
·whether or not the applicant meets cl.602.212(6) (medically unfit to depart); and
·if not, 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).
The first limb of the Tribunal’s inquiry, therefore, is whether the applicant meets cl.602.212(6).
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 has limited information before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. As such, the requirements in cl.602.212(6) are not met.
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 the Tribunal is not satisfied on the basis of the information before it that the applicant is medically unfit to depart Australia, it must assess the applicant against cl.602.215.
cl.602.215
(1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and
(c) any other relevant matter.
(2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
Clause 602.215 in Schedule 2 of the Migration Regulations is a criterion that must be satisfied. That is, that the decision-maker is required to be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
In assessing whether the applicant satisfies clause 602.215 a decision-maker is required to have regard to the following:
·Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject
·Whether the applicant intends to comply with the conditions to which the visa would be subject
·Whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia
·The personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay
·The personal circumstances of the applicant that might encourage them to remain in Australia (for example, economic situation, civil disruption)
·Conditions that might encourage the applicant to remain in Australia
·The presence of immediate family members living in their home country that is, does the applicant have more close family members living in their home country, than in Australia.
The applicant’s departmental records as reflected in the Departmental decision (submitted to the Tribunal for the purposes of the review) indicate:
·On 29 June 2013 the applicant arrived in Australia as the holder of a Student (subclass 573) visa which ceased on 3 August 2016;
·On 3 August 2016 the applicant lodged a further Student (subclass 500) visa. This visa was refused on 28 October 2016. The applicant sought a review of the decision at the Migration Review Tribunal (MRT) on 17 November 2016. This was affirmed on 12 January 2018.
·The applicant currently holds a Bridging visa in association with this review; and
·During the applicant’s time in Australia, the applicant has been an unlawful non-citizen for a total of one year, six months and 13 days.
The applicant lodged this Medical Treatment visa, subject of this review, on 21 August 2019. At the time of application, the applicant stated that he wanted to remain in Australia until

1 November 2019 to seek medical treatment for depression. In Form 1507 the applicant was asked to provide details of his medical condition and his General Practitioner wrote, “Major depression with anxiety adjustment disorder since earthquake in Nepal and losing house/business”. It was advanced that he was being treated via anti-depressants and psychological support. Little further information was provided about the nature of the psychological support being provided and whether the support was administered by a mental health expert, for example.
At the hearing the Tribunal noted that the earthquake occurred in April/May 2015 and that the Tribunal had limited evidence before it, about whether the applicant had been seeking medical treatment consistently in Australia to date. This would demonstrate to the Tribunal, in part at least, that the applicant had been treated for an intractable medical condition and that the Medical Treatment visa he had applied for was not for the purpose of maintaining his presence in Australia. The Tribunal noted that the applicant had had ample time since the Department had made its decision on 3 September 2019, to provide current and persuasive medical information to demonstrate that he required medical treatment in Australia.
The applicant stated that he had been too frightened to venture out to Sydney to see his general practitioner due to the Covid-19 pandemic, even though the Tribunal noted that it was possible to obtain a phone or video consultation with his treating doctor (telehealth). The applicant stated that he would obtain a medical report and would submit it to the Tribunal and the Tribunal provided him with a week to make that report and any other medical information available.
The Tribunal noted that it had little information before it to suggest, for example: how over the 5 years since the earthquake in Nepal the applicant was being treated; the length of the treatment required; the prognosis and why the applicant needed to remain in Australia to receive medical treatment. The applicant stated that he was still undergoing treatment for depression. The applicant stated that he went to see a doctor about his depression around October 2019. He also went to see the doctor a second time. He could not attend a doctor’s surgery a third time due to COVID 19.
The Tribunal requested that the applicant submit medical evidence of the ongoing treatment he had been receiving since the earthquake in Nepal in 2015, detailing the nature of his treatment and the prognosis and why the applicant needed to remain in Australia for treatment.
The Tribunal asked the applicant why he could not seek assistance for his depression in Nepal. He stated that he had been in Australia for 7 years and he had a girlfriend in Australia.
The Tribunal put to the applicant pursuant to s.359AA of the Migration Act the details of his lengthy period in Australia as an unlawful non-citizen. The Tribunal noted that this would indicate that the applicant was prepared to disengage from the Department of Home Affairs if it suited him to continue to remain in Australia, and that he might not abide by his Medical Treatment visa conditions. He also applied for a Student visa when he did not meet the criteria as the MRT decision demonstrated that he had failed his subjects (also put to him pursuant to s.359AA of the Migration Act). The Tribunal noted that this would indicate that he had not been a genuine student and had breached his student visa conditions in the past, and would breach visa conditions in the future.
When the Tribunal queried the applicant about why he had been unlawful for such a lengthy period, he stated that he was not aware as to what he was doing. His mental health issues affected him significantly and he was not in the frame of mind to regularise his status in Australia. His circumstances also affected his studies.
The Tribunal also queried the applicant as to whether he had seen a psychologist to assist with his treatment. He stated that he had seen a psychologist at university when he was studying in 2015, at the time of the earthquake. He had also gone for the first time to see a psychologist in October 2019, and after that, had consulted his General Practitioner a few times.
The Tribunal asked the applicant whether his Bridging visa permitted him to work. He stated that he was not sure about that. Asked again if he was permitted to work he stated, “I think so”. He stated that he worked in a kitchen in hospitality. He just did whatever jobs he could obtain from people. He worked 20-40 hours per week.
The Tribunal observed that the applicant was, despite his illness, capable of working up to 40 hours a week, and he responded that he took days off when he was not feeling well and could not focus. His girlfriend was also supporting him financially.
The Tribunal noted that it was not clear that he did have work rights and the applicant responded that it was unfortunate.
The Tribunal noted that if the applicant did not consider he was being well serviced by his current migration agent that he should seek advice from some other agent about his options for remaining in Australia, if that was what he wanted to do and he was not successful in respect of his Medical Treatment visa. The Tribunal could not provide him with legal advice.
Finally, the Tribunal asked the applicant how, precisely, the earthquake had affected his family in Nepal. He responded that the lives of his family physically had not been affected, however, his parental home was damaged, and the family business was also damaged. It was hard for them to make a standard living for a couple of months and he had no contact from his family for a couple of weeks. He was very worried. Hence, all the financial help they had been providing was no longer available.
The applicant stated that now he was a bit more focussed. His girlfriend and family friends were supporting him.
After the hearing and within the requisite time frame, the applicant submitted a report by the applicant’s General Practitioner, Dr Jasvinder Kheray, dated 23 July 2020, stating:
This is to certificate that Bikal Raut (D.O.B….) has been presenting to both this and Auburn practice with anxiety/depression with adjustment disorder and was on Loxalate 10mg for four to five months.
He also consulted me on 19 March 2020 for a review (telehealth) and I noticed improvement in his behaviour. He was having good support around and was living with some close family friends.
He was also counselled regarding alcoholism and abundant smoking secondary to his issues.
Bikal seems back to normal and is enjoying his work and is much more focussed now.
The applicant made a submission to the Tribunal dated 24 July 2020, setting out how during the May 2015 earthquake he had lost contact with his family members for three weeks due to telecommunication network issues. His submission reflects, in the main, the arguments put forward at hearing:
At the same time, there was tuition fee due, assignment due and I could not concentrate and control myself what to do next and how to go ahead. All Nepalese student were provided a free mental health counselling session from a counsellor representing Central Queensland University Rockhampton. I attended the counselling session “however that did not help me”. I can say this as I can remember that I could not focus and concentrate on anything at all and failed to (sic) some of my units that time. I could not even complete those units after two exam sittings too.
Then, I decided to join Torrens University with the credits from passed (sic) units from CQU and lodged a new student visa on August 2016 and I could not finish my degree on time.
Unfortunately, the student visa application was refused in December 2016. I then went to get migration advice from registered migration agent in Sydney who lodged my AAT application.
Even though I changed the college, I still had the issue of focusing on to my study and gradually my interest to study in Australia and staying in Australia gone down.
I don’t even remember clearly what actually happened to me at that time and what I was doing. However, as per mental health specialist I had medical condition developed since 2015. I went for AAT hearing in 2018. AAT was not satisfied with my academic progression so agreed with the departmental decision to refuse to grant my student visa…
I was already mentally disturbed and in a financial hardship. So, I could not focus what next to do and where to go for help and support. I was waiting for federal circuit court to contact me for further steps to go ahead.
In March 2019, my family friends found me “not normal” in Sydney and advised me to come to Canberra. The I moved to Canberra on March 2019. I was being supported financially and emotionally by my girlfriend and my family during these hard time in Australia.
I was advised to see Mental health professional by GP and my family friends. After couple of month, my health started becoming better however I was not completely healthy. In August 2019, my friend took me to see his migration agent to discuss about my case as my health was getting than before even though I still had trouble focussing on and had mental health condition. On that day, I was told that I don’t have any legal status in Australia. I was shocked and saddened by the information.
I then decided to lodge medical treatment visa in Australia 2019. My visa got refused in a month however I was unaware of the decision at that time. Once I became aware, I lodged AAT to seek appeal with my visa application.
Why this visa should be granted to me?
As I have been going through medical treatment at the moment and is gradually getting better. Getting this visa would help me to stay here until I get full treatment. I have attached a letter from my treating doctor with my current medical situation and treatment I am getting from him.
As my medical situation is getting better and I can feel that I can focus more than before and have started socialising than before. I hope and I am more confident now that I will be better and I have prepared myself that I will start my life joyfully before getting this depression and anxiety…
FINDINGS
The Tribunal accepts that the applicant’s family was affected by the earthquake that hit Nepal in April/May2015, which caused extensive damage to property and took many lives. The Tribunal also accepts that the event triggered mental health problems for the applicant as he was in Australia while his family was undergoing this event and initially the applicant was unable to contact them. The Tribunal also accepts that the applicant struggled with his studies as a result and that he was “lost” as claimed for some time.
The Tribunal accepts that the applicant availed himself of a session of counselling at Central Queensland University in the aftermath of the earthquake, but from then on, there is limited evidence of the applicant seeking assistance until it was time to lodge his Medical Treatment visa, lodging a Form 1507 in which his General Practitioner on 15 August 2019, stated that the applicant was suffering from major depression with anxiety adjustment disorder “since earthquake in Nepal and losing business”.
The applicant in his submission above states that he did not know how to get help or support, yet it appears that rather than seek psychological counselling or psychiatric assistance, the applicant pursued merits review of his Student visa application, meaning that he was able to obtain assistance from a migration agent in respect of his migration status in Australia, and was able to pay for such services. Apart from the session of counselling at Central Queensland University, however, the applicant did not appear to turn his mind to seeking assistance for his symptoms prior to 2019.
The timing of the applicant’s visit to his General Practitioner (including possibly a visit to a psychologist/psychiatrist) close to the time of the lodgement of his Medical Treatment visa raises questions in the mind of the Tribunal as to whether the applicant is using the Medical Treatment visa to maintain an ongoing presence in Australia, given his options for remaining in Australia have now narrowed.

The Tribunal accepts that the applicant is taking medication and that he has had contact with his GP on several occasions, and a visit to a counsellor on campus, and possibly a more recent visit to a psychologist/psychiatrist. As such, the Tribunal accepts that the applicant has mental health issues, however, in view of the evidence before it, the Tribunal considers that on balance, the applicant’s need to be in Australia for medical treatment is outweighed by other considerations such as working here and attempting to maintain an ongoing residence.
The applicant’s history would show that remaining in Australia on an ongoing basis has been the applicant’s overriding intention.
Even disregarding the applicant’s limited actions to seek assistance for his condition in the past, the Tribunal is required to assess whether at the time of decision the applicant is in need of medical treatment for a condition that might be life threatening or so serious as to warrant immediate treatment in Australia prior to the applicant returning to his home country.
On the evidence submitted at time of decision, by way of the report by Dr Jasvinder Kheray, dated 23 July 2020, it is difficult for the Tribunal to be satisfied that the applicant has a genuine need to be in Australia for the purposes of seeking medical attention currently. From the report it appears that the applicant has been on an anti-depressant “for four to five months”, however, it is unclear why this treatment could not be obtained in Nepal.
The Tribunal accepts that in Nepal mental health has been one of the least prioritised areas of development, and it was the earthquakes of 2015 that brought the mental health of the population into public discourse.[1] Consequently, the first International Conference on Mental Health was organized on 16-17^th of February 2018. This conference was organised by Primary Health Care Revitalization Division (PHCRD), Department of Health Services, Ministry of Health and Population, Nepal in collaboration with several national and international organizations working in the field of mental health. This also launched a discussion for identifying more cost-effective and efficient mental health programs in Nepal under the theme, “Coming Together for Mental Health”.[2] While this conference was only the genesis of any move to recognise mental health issues in Nepal, it does demonstrate that the concepts of mental health and well-being are recognised by the health sector and that were the applicant to seek treatment in Nepal it would be available to him, if not as readily as it might be in Australia.
[1] Post by Pragya Lamsal, Rita Gautam, 11 July 2018, “Mental health in Nepal: Time to invest more on the sector”, accessed on 30 July 2020.
[2] Ibid.
There is also limited evidence before the Tribunal regarding any psychological or psychiatric assistance the applicant has been receiving currently and consistently. The Tribunal appreciates that seeking assistance during COVID 19 might be difficult, but it does not explain the applicant’s limited action to obtain assistance pre-COVID 19. Further, it appears that the General Practitioner has diagnosed the applicant, but it is unclear what testing he might have used to arrive at his diagnosis, and why the applicant has not been placed on a mental health plan, for example.
These matters, together with the applicant’s migration history, would indicate that the applicant has continued to remain in Australia and possibly to work and pursue a relationship with his girlfriend, and leaves the Tribunal to have concerns that the applicant would not use the Medical Treatment visa to actually seek assistance for any current conditions in future. The applicant asserts in his submission that he would stay in Australia to “get full treatment”. On the basis of the applicant’s past conduct, however, the Tribunal is not satisfied that the applicant would use a Medical Treatment visa to be fully recovered because he has little motivation to leave Australia.
Moreover, Dr Jasvinder Kheray, has reported that the applicant was “back to normal” and enjoying his life, including his work in Australia. Dr Kheray does not, however, map out any future treatment plan for the applicant (other than medication) and why the treatment needs to be in Australia.
Against these concerns the Tribunal addresses the matters relating to cl.602.215:
Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any Bridging visa held by the applicant, was subject
The applicant’s migration history in Australia demonstrates that he has been an unlawful non-citizen for a lengthy period. Even allowing for the fact that the applicant was shaken by the events in his home country, the Tribunal is not convinced that the applicant could not have liaised with the Department to regularise his status in Australia and explain his difficulties.
The applicant’s history as a student in Australia demonstrated that he also breached conditions relating to performance but given the applicant may have been genuinely disoriented at the time, the Tribunal places limited adverse weight on this matter.
The Tribunal is unclear whether the applicant has and had work rights; he may well have. It is concerning that at hearing the applicant was not able to provide the Tribunal with an unambiguous response in relation to this matter, particularly as he claimed he had consulted with a registered migration agent. Nonetheless, the Tribunal is unable to make an adverse finding against the applicant in terms of breaching conditions of any visas in relation to work rights as it does not have that information before it.
What the Tribunal can place adverse weight on, however, is the fact that the applicant has been motivated to remain in Australia to work. This leads the Tribunal to have concerns that the applicant is pursuing the Medical Treatment visa to continue to attain an economic benefit in Australia; a purpose which is not consistent with the grant of Medical Treatment visa.
Whether the applicant intends to comply with the conditions to which the visa would be subject
The Tribunal has serious concerns about whether the applicant genuinely intends to comply with the conditions to which the visa would be subject. Even allowing for mental health problems in the past, the applicant has not demonstrated any willingness to regularise his status when he had no legal basis to be in Australia. The Tribunal has concerns that the applicant’s conduct was motivated largely by a motivation to remain in Australia, regardless of the consequences.
The fact that the applicant at hearing was not able to tell the Tribunal whether he had work rights, but continued to work nonetheless, calls the applicant’s intention to comply with the conditions to which the visa would be subject, into question. At the very least it demonstrates that the applicant has scant regard to the conditions of his visa and the Tribunal has concerns that the applicant would in future make little effort to be aware of his visa conditions, let alone abide by them.
Whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as to maintain ongoing residence in Australia
The Tribunal is concerned that the applicant is attempting to remain in Australia not only because he is making a living here, but also because he has family and friends, and in particular, “a girlfriend” who seems to be providing him with emotional and material support. Given this attachment the Tribunal is not satisfied that the applicant’s motivation to return to his home country is particularly compelling.
The personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay
The Tribunal acknowledges that the applicant has family in Nepal. However, he now has a girlfriend in Australia. In terms of his work prospects there, the Tribunal has limited information, whereas the applicant appears to have been able to obtain work in Australia. The Tribunal considers that the incentives to return to his family in Nepal are less than the incentives to remain in Australia by whichever means possible.
The personal circumstances of the applicant that might encourage them to remain in Australia (for example, economic situation, civil disruption)
Given the applicant has been encouraged to remain in Australia to date and the applicant does not appear to have made efforts to depart Australia permanently after his Student visa and Bridging visas no longer permitted him to stay here, the Tribunal can only surmise that the applicant considers that the economic situation in Australia provides him with an incentive to remain here. This is particularly so as the earthquake had a significant impact on the economy of Nepal; a country already experiencing significant fiscal hardship.
Conditions that might encourage the applicant to remain in Australia
The Tribunal considers that the applicant’s employment prospects in Australia, undertaking unskilled work appear to have been good. The fact the applicant has continued to find work to support himself, with the assistance of his girlfriend and family friends, indicates that he has a preference for remaining in Australia, rather than returning to Nepal. The fact the applicant did not meet the criteria for his Student visa application and continued to remain in Australia also demonstrates that the applicant is highly motivated to remain in Australia, even unlawfully.
The presence of immediate family members living in their home country, that is, does the applicant have more close family members living in their home country, than in Australia
From the applicant’s evidence at hearing it appears that he does have family in Nepal, nonetheless, they have not been instrumental in motivating the applicant to return to his home country. In Australia he is being supported by his girlfriend as well as family friends and the Tribunal has seen little evidence that the applicant is motivated to return to his home country.
CONCLUSION
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.
Rosa Gagliardi

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).

[2020] AATA 3584

30 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction