Sabbar (Migration)

Sabbar (Migration) [2020] AATA 5669 (23 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Asael Fawzi Sabbar
CASE NUMBER:  1830781
DIBP REFERENCE(S):  BCC2018/2991762
MEMBER:Moira Brophy
DATE:23 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Statement made on 23 September 2020 at 4:23pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – no evidence to show applicant is medically unfit to depart Australia –adverse migration history– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 Immigration on 5 October 2018 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 7 August 2018. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant was able to meet the requirements of the visa as set out in cl.600.215 and did not genuinely intend to stay temporarily in Australia for the purpose of which the visa is granted.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant gave evidence by way of telephone to the Tribunal on 22 September 2020. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
BACKGROUND
The applicant is a 44-year-old who was born in Iraq. She is currently a citizen of Sweden. She arrived in Australia on 8 November 2014 on a Visitor (subclass 601). She was granted further Visitor visas on5 February 2015, 28 April 2015, 7 November 2015 and 23 January 2016. The applicant then applied for a Temporary Work (subclass 457) visa on 14 July 2016. That application was refused on 15 December 2016 and the applicant sought merits review of the decision at the AAT. On 13 December 2017 the AAT affirmed the decision under review. On 10 January 2018 the applicant applied for Ministerial Intervention but on 23 January 2018 the matter was determined as ‘not referred.’ A further application for Ministerial Intervention under section 351 was made on 18 July 2018. The application was determined inappropriate to consider on 20 July 2018. On 13 February 2018 the applicant lodged a Medical treatment (subclass 602) visa. That application was refused on13 April 2018. Review was sought at the AAT on14 May 2018 and on 15 August 2018 the AAT found the relevant timeframes had not been met.
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 issue in this case is whether the applicant has provided sufficient information for the Tribunal to be satisfied he meets the criteria for the visa and whether the Tribunal is satisfied the applicant genuinely is intending to stay in Australia only for the purposes of treatment.
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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The Tribunal is satisfied the applicant is in Australia. The applicant has provided her date of birth (5 May 1976) and the Tribunal is satisfied she has not turned 50 years of age.
Given the above findings, 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).
The application form (Form 48ME) contains a series of questions which asks the applicant how long she seeks to remain in Australia (Q15), for what period will she be under medical care (Q17), she is asked to describe the medical treatment she has arranged (Q18), and details of her doctor/hospital in her home country and in Australia (Q's 19 and 20) and funding for her stay (Q26).
At the time of application the applicant stated she wished to remain in Australia for the period from 3 August 2018 to 3 August 2020 to obtain medical treatment from Dr Samy Erian. The applicant stated she had been suffering from abnormal gait, diabetes, nonspecific chest pain and required diet follow up and medication. The original form 1507 submitted with the application and completed by Dr Samy Erian was dated 9 February 2018. It stated the treatment required by the applicant was diet and follow up medication. A further letter was provided from Dr Samy Erian dated 13 September 2018. It was indicated the applicant was suffering from PCO syndrome with elevated androgen hormones and insulin resistance and that she also had a small simple cyst on her left ovary. Treatment was required which could last one to two years. Her treatment would be self-funded.
At the time of hearing the applicant told the Tribunal she had last had treatment on 27 June 2019 when she had surgery to remove the cyst on her ovary. The procedure had been carried out at Fairfield Hospital where she had been a day patient. She said she still experienced pain in her stomach. She said when the pain was bad, she had to take Keflex. When asked when she had last had to take that medication, she said it was about a month ago and she had taken the medication for one week. The applicant said she had last seen her GP about two months ago and she had not seen her specialist since her procedure in June 2019.
The applicant said she was not currently being treated for diabetes. She had been supposed to see a dietician, but she had not followed through with the appointment. The applicant said she was not receiving any fertility treatment. When asked about her mental health the applicant said she was not taking any medication. She was sick of doctors and was treating herself using natural methods such as relaxation and walking.
The applicant has not provided the Tribunal with any medical evidence to indicate that she has been receiving treatment on an ongoing basis or that she requires ongoing medical treatment in the future. She has not provided any medical evidence that a long flight would be injurious to his health.
The applicant has filed with the Tribunal a copy of the Department's Decision Record dated 5 October 2018 which sets out her immigration history. The Tribunal raised as an issue with her its concerns that her immigration history tended to indicate that she applied for the Medical Treatment visa to extend her stay in Australia and not because she intended seeking medical treatment in Australia. The applicant agreed but said it was no longer her intention to stay in Australia. She was tired of all the visa problems they had encountered and the cost of having to pay for everything in Australia including her daughter’s education costs and her medical costs. They intended to return to Sweden as soon as COVID safe to do so.
Accordingly after taking into account the evidence on file and the evidence given at the time of hearing the Tribunal finds it cannot be satisfied that the applicant meets the requirements for the visa as there is no information or evidence to suggest that that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
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.
Moira Brophy
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 5669

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction