Sethia (Migration)

[2023] AATA 717

Sethia (Migration) [2023] AATA 717 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fahim Abdul Rehman Sethia

REPRESENTATIVE:  Mrs Anne Frances O'Donoghue

CASE NUMBER:  2108352

HOME AFFAIRS REFERENCE(S):          BCC2021/1055593

MEMBER:Andrew McLean Williams

DATE:16 March 2023

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 16 March 2023 at 11:37am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – period of unlawful residence – sponsoring partner passed away – referral for Ministerial intervention – 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 8 June 2021 to refuse to grant the Applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant applied for the visa on 7 May 2021. 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 (Cth) (‘the Regulations’).

3. The Delegate refused to grant the Applicant the visa because the Delegate could not be satisfied - given the available evidence and the Applicant’s past visa history - that the Applicant genuinely intended to remain in Australia only temporarily, for the purposes of his seeking medical treatment. 

4. The Applicant was represented in relation to the review before the Tribunal by Mrs Anne O’Donoghue of Immigration Solutions Lawyers.  On 13 October 2022, the Applicant advised the Tribunal that he waived his right to a hearing, and requested that the Tribunal proceed to make a decision ‘on the papers’.  This was subsequently confirmed, in written submissions from Immigration Solutions Lawyers dated 14 October 2022.  That submission also requests that Ministerial Intervention be recommended by the Tribunal in the case of the Applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 can satisfy the specific requirements of clause 602.215.

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

7. 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 clause 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.

8. The Applicant is in Australia, yet was born in 1980 such that he is now only 42 years of age.  There is also no evidence before the Tribunal from a Commonwealth Medical Officer to certify that the Applicant is unfit to depart from Australia due to a permanent or deteriorating medical condition or disease.  Given these findings, the requirements in clause 602.212(6) are not able to be met, such that the requirements in clause 602.215 do still apply in the case of this Applicant.

9. In the submissions from Immigration Solutions Lawyers, and on the basis of the available medical evidence, there is no indication (nor even so much as an intimation) that the Applicant intends to remain in Australia only temporarily for the express purpose of his obtaining medical treatment.  The Tribunal also notes that the Applicant first arrived in Australia on 8 June 2010 on a Student (Subclass 573) visa.  This was cancelled on 14 June 2011.  The Applicant thereafter remained onshore as an unlawful non-citizen and applied for a partner visa (Subclass 820/801) on 31 March 2014, yet this was refused on 30 January 2017 by reason that the Applicant’s then sponsoring partner had passed away on 28 March 2016.  The Applicant then sought to review the refusal of the partner visa before the AAT.  The AAT affirmed the refusal of the partner visa on 22 June 2018, after which the Applicant appealed the Tribunal decision to the Federal Circuit Court.  Ministerial intervention was also sought by the Applicant on 27 November 2020, however that request was not recommended for a referral to the Minister. 

10. The Applicant has not held any form of substantive visa since as long ago as 15 June 2011, and made application for this medical treatment visa on 7 May 2021.

11. Given the lack of evidence regarding the Applicant’s genuine intentions to remain in Australia only temporarily - and in light of the lengthy period of time which the Applicant has already been in Australia, and the Applicant’s prior visa history - the Tribunal cannot be satisfied that the Applicant genuinely intends to remain in this country only temporarily for medical treatment purposes.  Therefore, the requirement in clause 602.215 is not met by the Applicant.

12. The decision under review must be affirmed.

13. The Applicant has requested Ministerial intervention.  In support of that request, medical reports have been obtained from Ms Anne Lucas, forensic psychologist, dated 29 April 2022 and from Doctor John McAulay, consultant psychiatrist, dated 16 September 2020.  There are also other medical reports of relevance to the Applicant’s medical condition on the Tribunal file.  

14. Ms Lucas notes the Applicant to have Schizophrenia, Major Depressive Disorder and Panic Disorder.  Doctor McAulay describes the Applicant as having a “severe, chronic mental illness, schizophrenia, on a background of significant trauma both around the unexpected death of his second wife in Australia and previous events in India and Pakistan”.  Doctor McAulay opines that “should Mr Sethia be returned to India then he will have no support, would in my view be highly vulnerable and at very high risk of further mental ill health due to the nature of his ongoing symptoms.”  

15. The Applicant is clearly medically unwell.  The Tribunal recommends that the Applicant’s circumstances be at least considered by the Department in relation to the renewed request for Ministerial intervention.

    DECISION

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

    Andrew McLean Williams
    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).