Savarinathan (Migration)

[2022] AATA 2709

Savarinathan (Migration) [2022] AATA 2709 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vijayan Savarinathan

REPRESENTATIVE:  Mr Latifa Al-Haouli (MARN: 1175724)

CASE NUMBER:  2100318

HOME AFFAIRS REFERENCE(S):          BCC2020/2792642

MEMBER:Scott Clarey

DATE:29 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 29 June 2022 at 10:57am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 –adverse migration history –genuine intention to stay temporarily – maintaining ongoing residency – no evidence to show applicant is medically unfit to depart Australia – applicant would be able to manage his medical issues on his return to Malaysia – 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 December 2020 to refuse to grant the visa applicant a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa under s 65 of the Migration Act 1958 (Cth).

2. The visa applicant applied for the visa on 10 December 2020. The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intends to remain in Australia on a temporary basis and is using this visa application to remain in Australia on an ongoing basis.

4. The applicant appeared before the Tribunal on 27 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 a genuine intention to stay temporarily for the purposes of their Medical Treatment visa.

8. In assessing the application for review, the Tribunal has had regard to all of the information on the Departmental and Tribunal files.

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

9. 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) which requires that an 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.

10. As the applicant was born in 1976, the applicant has not yet turned 50. Given this finding, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

11. In the present case, the visa applicant seeks the visa for the purposes of seeking medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212(2).

12. A signed letter (dated 22 June 2022) from Dr Emmanuel Ndukwe (the applicant’s GP), stated the following:

    We write on behalf of Mr Vijayan Savarinathan who had been a patient of this medical centre since 14/12/2015.

    He suffers from the following work related injuries / trauma;

    (i)       Chronic bilateral shoulders pain

    (ii)       chronic Neck pain (with spinal and muscles involvement)

    (iii)      chronic Lower Back pain

    (iv)      Psychological issues ( Mental health- anxiety & depression)

    He is currently on treatment for ALL the above conditions until his situation changes, the period is yet uncertain but likely to improve and to be reassessed in about 12 months.

    He had maintained regularity to all his appointments with the team care providers listed below; Name & address of Medical Facilities involve in his current management:

    1.    Northwestern Private Clinic Keilor East- Dr. Neeraj: 154 Millear Road Keilor East-Psychiatrist.

    2.    Spinal Surgeon Mr.Patrick Chan- Suite 1. Level 3, 517 St. Kilda Road Vic. 3004.

    3.    Pain Management Specialist Australia Monthly by Dr. Vinay Reddy- Level 4/600 Victoria Street, Richmond Vic 3121

    4.    Psychologist appointment Every 2 weeks by Joe Szakmary

    5.    Physiologist appointments weekly by Beth.

    6.    Occupational Therapist appointment weekly by Fiona Thomas

    Agreement to Treat; Nature of the Treatment, Period and cost of treatment.

    Mr Vijayan Savarinathan requires on going treatment from the above team care professionals and the general practitioner. His treatment would continue until such a time that his medical conditions allow him to self care, maintain quality of life and safety in performing activity of daily living. The time frame, cost and nature of treatment are unknow but likely to improve after about 12 months.

    Statement of Disadvantage .:.

    It is our opinion that, no Australian citizen or Australian Permanent Resident will be disadvantaged should Mr Savarinathan undergo this treatment.

13. I note the following information related to the applicant’s migration history, outlined by the delegate in its Decision Record. This information was discussed with the applicant at the hearing.

    The applicant last arrived in Australia on 04 August 2015 and they have remained in Australia ever since.

    The applicant's medical circumstances have already been considered and their stay in Australia has so far been permitted to exceed the general 12 month maximum.

    A response period of seven days was afforded to the applicant to provide a response regarding their Migration History. A response was received in the form of a written submission from the agent along with a document showing a flower shop is registered to the applicant offshore and these have both received consideration.

    On this occasion the applicant requests to remain in Australia until 10 December 2021 which, if approved this would take the applicant's total uninterrupted stay in Australia using temporary visas and absence from any responsibilities in their home country to over six years.

    Although the evidence of flower shop registration has been considered, given the length of time already spent in Australia as well as the length of time requested, I am not satisfied that this proves to be adequate incentive for the applicant to depart Australia.

    Additionally, Departmental records show that the applicant has also unsuccessfully attempted to remain permanently in Australia when they applied for but were refused Permanent Protection (subclass 866) visa.

14. I discussed the applicant’s visa history with him at the hearing. I note that the applicant gave vague, evasive and at times confused responses in relation to basic questions about his time in Australia and about his visa history here. He said that he last arrived in Australia in 2015 on a visitor visa with the intention to be a tourist here. The applicant claimed not to be able to remember why he had decided to stay in Australia but eventually alluded to ‘some problems’ he had back in Malaysia while he was here. I asked the applicant about the protection visa that he had applied for but which was ultimately refused after appeals to the Tribunal, and through the courts had failed. The applicant claimed not to know when this process had concluded, and could not say with any certainty whether he had been unlawful at any time throughout this period. I discussed this issue with the applicant’s representative at the hearing. She told the Tribunal that after the AAT had affirmed the delegate’s decision, the applicant had appealed this to the Federal Circuit Court, but had failed to attend the scheduled court hearing and the case was subsequently dismissed in 2017. Neither the applicant nor the applicant’s representative could say with any certainty if the applicant had remained in Australia unlawfully at any time since 2015. I note that the applicant has not left Australia since 2015.

15. At the hearing, the Tribunal asked the applicant about his medical conditions. I note that the applicant gave responses that were at times vague and confused. The applicant stated that he was involved in a workplace accident at his previous workplace and that he sustained a shoulder injury there in 2017. He has undergone several surgeries including on his shoulder, lower back and neck. He stated that he still underwent physiotherapy and receives injections related to the injuries. He said that he still suffers pain from these injuries including in his shoulder and lower back. When prompted, the applicant stated that he also suffered from mental health conditions. He stated that he took an overdose in 2020, was admitted to the Sunshine Hospital and later discharged, with the doctor telling him to go home and rest. He said he was referred to a psychiatrist and a psychologist, that he claims to still regularly see. The applicant stated that he was on medication, including for hypertension, diabetes and cholesterol issues, in addition to a blood thinner, painkillers and sleeping medication.

16. I asked the applicant why he could not be treated for these medical issues in Malaysia. The applicant stated that because the accident happened in Australia, WorkCover paid for his medical expenses here. He said if he received treatment in Malaysia, WorkCover would not cover the expenses there. He said that while he was still under treatment in Australia he would like to remain here, and stated that he would return to Malaysia at an unspecified future date once he was fully recovered. I note that the applicant did not claim he would be unable to receive required treatment in Malaysia, only that it would be paid for in Australia and not in Malaysia. I also note the applicant’s representative stated that the applicant had received a substantial compensation payment related to the historic workplace accident, of more than $300,000.

17. I discussed with the applicant ties he had in Malaysia. The applicant stated that he had three children there, two sons and one daughter, two of whom were adults and one who was 14. He said that he also had two brothers and one sister in Malaysia. He said that he owned a business in Malaysia, a flower shop that his brother took care of while he was away.

18. The Tribunal heard evidence from the applicant’s wife at the hearing. She told the Tribunal that she wanted her husband to heal and live a normal life. She said that she managed much of her husband’s medical care and provided physical and mental support to her husband. She stated this was the last stage of his care and that the couple intended to return to a normal life in Malaysia.

19. The applicant’s representative was given an opportunity to address the Tribunal at the hearing. She stated that her client’s protection visa application was made prior to the Subclass 602 visa being lodged and that her client, to her knowledge, had not lodged any other visa applications while in Australia. I note that she could not say with any certainty if her client had been unlawful since last arriving in Australia in 2015. She stated that her client had complied with the conditions of his visas, and referenced the GP’s medical report that had been submitted to the Tribunal days before the hearing (discussed above). She stated that her client had been paid monetary compensation of $360,000 related to his workplace accident, and that it was clear he didn’t need to be here for financial reasons. She stated that his medical treatment was ongoing.

20. I note that the applicant has not suggested that he would be unable to travel to Malaysia as a result of his medical issues. I do not accept that the applicant’s medical issues would make travel unreasonably difficult for him. I note that the applicant has not claimed he would be unable to receive treatment for his medical issues in Malaysia. Based on the evidence before me, I find that the applicant would be able to manage any medical issues he has on his return to Malaysia.

    Findings

21. The applicant’s visa history clearly points to the applicant seeking to stay in Australia on an ongoing basis. I note that the applicant has been in Australia for approximately seven years, and has previously applied for a protection visa (that ultimately failed after several years of appeals to both the Tribunal and the Federal Circuit Court) to remain here permanently. After reviewing all of the information before the Tribunal, I do not accept that the applicant has a genuine intention to remain in Australia temporarily. While I accept that the applicant has had various medical treatments in Australia for various issues as outlined above, the applicant’s visa history supports the Tribunal’s finding that the applicant is strategically utilising Australia’s visa pathways in order to extend his stay in Australia. I find that the applicant would be able to manage his medical issues on his return to Malaysia.

22. Accordingly, I find that the applicant does not have a genuine intention to remain in Australia temporarily for the purpose for which the visa is granted, namely, medical treatment.

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

24. 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

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

    Scott Clarey
    Member