Rehan (Migration)

Rehan (Migration) [2021] AATA 2655 (9 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad REHAN
CASE NUMBER:  2003178
HOME AFFAIRS REFERENCE(S):          BCC2019/6468908
MEMBER:Nathan Goetz
DATE:9 June 2021
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 09 June 2021 at 1:46pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – applicant is not in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 360, 362
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 Home Affairs to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant identifies as a 33-year-old male citizen of Pakistan.
On 11 December 2010 the applicant arrived in Australia holding a student visa. This visa ceased on 15 March 2012.
On 5 April 2012 the applicant was granted another student visa. This visa ceased on 31 March 2014.
On 12 May 2014 the applicant was granted another student visa. This visa ceased on 2 December 2015.
On 19 February 2016 the applicant was granted another student visa. This visa ceased on 28 December 2016.
On 28 December 2016 the applicant applied for a temporary work (skilled) visa. This visa was refused on 20 October 2017. The applicant applied to the Tribunal to review the refusal decision. On 26 February 2019 the Tribunal affirmed the refusal decision. On 18 March 2019 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. On 24 June 2019 the Federal Circuit Court dismissed the applicant’s case. The applicant applied to the Federal Court against the decision of the Federal Circuit Court. On 8 November 2019 the Federal Court dismissed the applicant’s case.
On 4 December 2019 the applicant applied for the medical treatment visa. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa is set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 4 February 2020 the delegate refused to grant the medical treatment visa. The applicant was not satisfied that the applicant met cl.602.215. That is to say, the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the medical treatment visa is granted.
On 19 February 2020 the applicant applied to the Tribunal for a review of the refusal decision.
On 6 February 2021 the applicant departed Australia.
The Tribunal considered the information it had and could not make a decision favourable to the applicant. Accordingly, the Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review: s.360(1).
On 24 March 2021 the Tribunal wrote to the applicant and invited him to appear at a 15-minute Tribunal hearing commencing at 1:30pm on 9 June 2021. The Tribunal determined that a telephone hearing was appropriate as the applicant was offshore. The hearing invitation advised the applicant of the potential consequences of his failure to appear at the Tribunal hearing. The Tribunal requested that the applicant complete and return a ‘Response to hearing invitation form.’ The Tribunal never received the form.
At 1:30pm on 9 June 2021 the Tribunal telephoned the applicant on the number he provided in his review application form. The telephone call was not successful. Accordingly, the applicant failed to appear at a Tribunal hearing. Given the applicant failed to appear, and had not returned the ‘Response to hearing invitation’ form as requested, the Tribunal determined that the appropriate course for this matter was to make a decision on the review without taking any further action to allow or enable the applicant to appear at the Tribunal: s.362B(1A)(a). The Tribunal waited until the end of the allocated hearing time before making a decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The medical treatment visa application form completed by the applicant indicates that the purpose of his stay is to seek medical treatment or consultation. Funding for his stay in Australia will be self-funded and supported through a sibling. The applicant indicated he would be under medical care in Australia from 4 December 2019 until 4 December 2021. His treatment will be for anxiety and depression that includes psychological therapy and antidepressants. He wrote that he was seeking two doctors, namely Dr Matter and a psychologist named Silva. He will receive treatment from the Wangee Clinic.
Included in the application form was a completed Form 1507 completed by Dr Matters and Dr Silva. The medical condition requiring treatment was described as severe anxiety disorder complicated by depression. The treatment information was 1) medication 2) cognitive behavioural therapy and 3) interpersonal therapy. The applicant also included a written letter where he claimed he was receiving ongoing medical treatment and check-ups with his doctor. He wanted to remain in Australia until he was fit mentally to return to his home country and live with his family. He wrote that he was stressed with visas and suffered being away from his partner and two children.
Also included was a letter dated 28 November 2019 from the Wangee Clinic. The letter from Dr Matter confirmed that the applicant had been treated by the author for severe anxiety disorder complicated by depression. It was clear from the first presentation that the applicant was ‘drawn unable to be able to sleep and having difficulty and coping with day-to-day living due to multiple casual stress factors.’ The letter noted the applicant’s prime concern to look after his family and that he put his trust in an employer which turned out to be below the expectation. Loss of sleep, loss of confidence and others and loss of self-esteem were the main negative sensations that the applicant described at the onset of his presentation. The letter detailed that the applicant had been treated with anti-depressants and referred for psychological therapy through psychologist Dr Silva. The letter noted that the applicant did not have any suicidal ideation. The applicant has a great degree of frustration not being able to achieve any significant outcomes since his arrival in Australia. Dr Matter wrote that he believed that the applicant required therapy which is ongoing, and which is important to his wellbeing and that this was likely to continue over 12 months.
FINDINGS AND REASONS
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 is such a person. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
Is the applicant unfit to depart Australia?
Clause 602.215 is not required to be met if the applicant meets cl.602.212. 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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The evidence is that the applicant is not in Australia and has not turned 50 years of age. There is no evidence that the applicant applied for a permanent visa in Australia and appears to have met all the criteria for that visa (other than the health criteria) but had been refused the visa. There is also no evidence in writing by a Medical Officer of the Commonwealth that the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or condition.
Therefore, the applicant does not satisfy cl.602.212(6).
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.
The Tribunal wrote to the applicant because it was unable to make a decision favourable to him on the information it had. The Tribunal wanted to hear more from the applicant and his claimed medical condition. The Tribunal was particularly interested to find out when he was diagnosed with his claimed medical condition, what was involved with this diagnosis, and when his treatment actually commenced. None of this information was contained in the letter from Dr Matters. For all the Tribunal knows, the applicant may have attended on Dr Matters once, received a diagnosis based solely on self-reporting by the applicant and never taken up the referral to Dr Silva.
Given the above, in combination with the applicant’s migration history, it would appear that the applicant lodge the medical treatment visa so he could remain in Australia following the refusal of temporary work (skilled) visa, not because he had a genuine medical condition requiring treatment.
The fact that the applicant departed Australia does not evidence that he was in Australia temporarily for medical treatment.
For the reasons given above, the Tribunal is not satisfied that the applicant genuinely intends to temporarily remain in Australia for the purpose of medical treatment.
Therefore, the applicant does not satisfy cl.602215.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Nathan Goetz
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).

[2021] AATA 2655

9 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice