Shah Nawaz (Migration)

[2023] AATA 1060

Shah Nawaz (Migration) [2023] AATA 1060 (26 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Shah Nawaz

REPRESENTATIVE:  Mr Muhammad Rafi (MARN: 1700370)

CASE NUMBER:  2211765

HOME AFFAIRS REFERENCE(S):          BCC2022/2586025

MEMBER:Naomi Schmitz

DATE:26 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.215 of Schedule 2 to the Regulations.

Statement made on 26 April 2023 at 3:31pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – judicial reviews of previous visa – payment of outstanding debt to the Commonwealth – ongoing treatment – medical evidence provided – frequent visits to family in home country – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 56, 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 600.217; Schedule 4, Public Interest Criterion 4004

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 25 July 2022 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 8 July 2022. 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 was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.

4. On 13 August 2022 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 24 March 2023, the Tribunal invited the applicant under s.359A of the Act to comment on or respond to information that would be a reason or a part of the reason for affirming the decision under review, namely the applicant’s migration history and time onshore in Australia. The notice stated that the applicant’s migration history suggested that the applicant wished to stay permanently in Australia, including what is set out below:

   1.Your migration records indicate that:

   a.   You arrived in Australia just under nine years ago on 12 August 2014 on a Student visa (Subclass 573). Despite a number of brief departures, you have remained in Australia since your date of arrival.

   b.   On 30 August 2016 you were granted a Bridging visa (Subclass 010) and you have been granted a series of Bridging visas since then.

   c.   On 30 August 2016 you applied for a Student visa (Subclass 500) and the application was refused on 4 November 2016. You applied for review of this decision at the Tribunal and the Tribunal affirmed the decision to refuse the visa on 3 September 2018. On 11 September 2018 applied for judicial review at the Federal Court which resulted in a Minister Win on 26 November 2019. You then applied for further judicial review on 3 December 2019 to the Full Federal Court which resulted in a Minister Win on 28 April 2022.

   d.   On 26 May 2022 you applied for a Medical Treatment visa (Subclass 602) and the application was refused on 3 June 2022.

   e.   You then made a further application for a Medical Treatment visa (Subclass 602) on 8 July 2022 which was refused on 25 July 2022. You made an application for review at the Tribunal on 13 August 2022 and this refusal is the decision under review in this proceeding.

6. The s.359A notice also invited the applicant to comment on or respond to information which showed that the applicant had an outstanding debt to the Commonwealth.

   You have an outstanding debt to the Commonwealth for judicial review of $9,220.00, where no payment plan has been entered and no repayments made.

7. The invitation advised that this information was relevant to the review because the outstanding debt to the Commonwealth would be a reason, or a part of the reason, for affirming the decision under review because cl. 602.217(1) of the Regulations requires that the applicant satisfy Public Interest Criterion 4004. This requires that the applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. If an applicant does not satisfy cl. 602.217(1) of the Regulations, the applicant cannot be granted the visa.

8. The Tribunal also on 24 March 2023 and in the same letter invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:

   1.Immigration records demonstrate that your last arrival in Australia was on 12 August 2014. Immigration records disclose that despite a number of brief departures that you have remained in Australia since that time. Why have you not departed Australia?

   2.In your medical treatment visa application lodged on 8 July 2022, you claimed that you would like to remain in Australia from 10 July 2022 to 4 July 2023 to seek medical treatment for Hodgkin’s Lymphoma. What arrangements have you made to depart Australia after 4 July 2023?

   3.The Tribunal does not have information concerning your medical treatment. Please provide information regarding:

   a.When you were first diagnosed with those condition(s);

   b.The nature and estimated duration of the treatment;

   c.The proposed date(s) of treatment;

   d.The prognosis of your medical condition(s); and

   e.The cost of your treatment.

   4.Noting you have been in Australia since 12 August 2014 please provide any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

9. The invitation to comment on or respond to information and request for information advised that if the applicant did not comment on or respond to the information put to him under s.359A and did not provide information pursuant to s.359(2) in writing by 11 April 2023, the applicant would lose any entitlement he might have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal would make a decision on the information it had without taking any further steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act.

10. On 29 March 2023, the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing by video-link commencing at 11:00 am (NSW time) on 13 April 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

11. On 11 April 2023 the representative provided the following documents:

    a.Two handwritten notes dated 3 April 2017 from Haematologist, Dr Christian Bryant (hereafter referred to as Dr Bryant) of the NSW Government Health Pathology;

    b.The applicant’s mother’s notification of grant of a Visitor visa (Subclass 600);

    c.Letter from Yvonne Kong, Registrar for Dr Bryant of the Royal Prince Alfred Hospital dated 3 March 2019 confirming:

    o   The applicant was diagnosed Hodgkin’s lymphoma in February 2017;

    o   He commenced treatment in April 2017; and

    o   He completed his treatment in January 2018.

    d.A copy of the applicant’s Bridging visa C conditions dated 8 July 2022 (including a 8101 no work condition); and

    e.Legal submissions dated 11 April 2023.

12. The applicant appeared before the Tribunal on 13 April 2023 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

13. At the hearing, the applicant claimed he had a longstanding review with his haematologist on 1 May 2023, which was scheduled the previous year on 23 May 2022, when the Form 1507 was completed. He further claimed that he had capacity to repay his Commonwealth debt, with financial support from his brother and mother. He stated he had not asked his brother for money due to feeling guilty, as his brother was saving to purchase a home.

14. The Tribunal Member explained to the applicant that there was no medical evidence before the Tribunal to support the applicant’s oral assertions. In relation to the Commonwealth debt, although the applicant claimed that he had an intention to repay the debt, the debt remained unpaid and without a plan made for its payment. Therefore even if the Tribunal were satisfied that the applicant met the genuine temporary entrant requirements, the visa would have to be refused due to the applicant not satisfying the Public Interest Criterion 4004.

15. At the conclusion of the hearing, the Tribunal Member explained to the applicant that as the applicant had been put on notice of the above matters, which were reasons for the original visa refusal on 25 July 2022, and further in the Tribunal’s s.359A and s.359(2) invitations in its letter dated 24 March 2023, the Tribunal Member would not grant the applicant an extension to file further materials, however, was obliged to consider all information up until the time of decision.

16. Upon further reflection of the applicant’s evidence, which the Tribunal Member found to be frank, and given the nature of the applicant’s medical history and proposed medical treatment, the Tribunal wrote to the applicant on 17 April 2023, and advised that although the Tribunal Member was yet to make a final determination, she was considering making a decision in the applicant’s favour but could not finalise her decision due to him having an outstanding Commonwealth debt of $9,220.00 and there being deficiencies in the medical evidence. The Tribunal Member granted the applicant until 4:00 pm on 20 April 2023 to provide evidence of payment of the Commonwealth debt and any updated medical evidence in support of the applicant’s application for review.

17. On 20 April 2023, the representative provided banking records showing full payment of the Commonwealth debt and an email sent by an administration officer of the Institute of Haematology dated 4 April 2023 to the applicant confirming his appointment to see Dr Bryant at 11:30am on 1 May 2023.

18. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

20. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born in July 1988 and is thus currently 34 years of age. The applicant has not applied for a permanent visa while in Australia which was refused. The Tribunal has no evidence 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. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    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.

21. The s.359A notice referred to in paragraph [5] above and the delegate’s decision record detailed the applicant’s migration history.

    CONSIDERATION OF CLAIMS

    Visa application

22. The applicant identified that he was in Australia, residing in New South Wales (NSW). He is a citizen of Pakistan. At the time of application, the applicant wrote that the purpose of his stay in Australia was to seek medical treatment, namely a medical review from his haematologist for Hodgkin’s Lymphoma. Hodgkin’s Lymphoma this is a ‘blood disorder’ and although the applicant has substantially recovered from the illness, he is required to submit to a mandatory remaining haematologist review. He claimed he would be financially supported by his brother and in support provided a Westpac bank statement dated 23 May 2022 showing a closing balance of $18,000. The applicant indicated that he would be under medical care for one year from 10 July 2022 until 4 July 2023 by Dr Bryant, at The Institute of Haematology, Royal Prince Alfred Hospital.

23. At the time of application, the applicant declared that he had an Australian citizen brother who resided in Australia and of whom the applicant was residing with. The applicant declared that he initially arrived in Australia in 2014 on a Student visa. He further declared that he had always complied with the conditions to which his visas were subject and not overstayed his authorised period of stay. The applicant admitted that he had a previous Student visa (extension in 2016) refused. The applicant subsequently sought administrative review at the Tribunal but was unsuccessful. The applicant further admitted that he had a previous Medical Treatment visa refused.[1]

    [1] Department file: BCC20222586025 – Applicant’s visa application

24. Attached to the visa application was a Form 1507 signed by Dr Bryant on 23 May 2022. It detailed the medical condition requiring treatment as ‘Hodgkin’s lymphoma’. The treatment information stated, ‘Ongoing haematologist review’. Also attached to the application was the letter dated 3 March 2019 referred to in [11c] above. 

25. The Tribunal has also had regard to the applicant’s response to a s.56 request for more information and documents filed including: a family registration certificate, marriage certificate and affidavits. The applicant claimed he had an intention to depart Australia due to having family who reside in Pakistan, including a wife (who he married on 22 December 2017), a son, a mother, father and two brothers. The applicant claimed that he wished to remain in Australia temporarily to seek medical treatment and that he had a desire to return to Pakistan as soon as treatment was completed.

    Evidence at hearing

26. At hearing the applicant confirmed that he has family who reside in Pakistan including a wife, a son (who will turn four years of age in July 2023), a mother, a father and one younger brother. He conceded that he had not seen them for approximately three and a half years but that this was largely due to the COVID-19 pandemic which had interfered with travel plans. He stated he had a good relationship with his family. The applicant stated that he was present for his son's birth, departing Australia on 16 July 2019 and returning on 3 September 2019. The applicant confirmed that he also had family who reside in Australia including two older brothers, one who is an Australian citizen and another who is currently in Australia on a temporary Student visa studying psychology.

27. Despite having a wife in Pakistan, the Tribunal Member asked the applicant whether he was in a relationship with anyone in Australia, and if so whether they were employed and what they earned. The applicant frankly admitted that he had recently commenced a relationship with a woman in Australia but that the relationship was in its infancy, with the parties meeting three months ago. He stated that he never intended to commence a relationship but had been very lonely and that his wife and the woman knew about each other. The woman is a divorcee, Australian citizen, with a seven-year-old disabled child. She works for insurer Suncorp, but the applicant did not know how much she earns. She lives approximately 40 minutes from the applicant in Campbelltown..

28. The applicant owns a motor vehicle, a Honda Civic 2004 model, and has an international drivers licence. The Tribunal Member asked the applicant whether he had made any plans to dispose of his motor vehicle. The applicant stated that as it is of limited value (approximately $3,500), he had not made any arrangements and planned to leave the motor vehicle to his brother. This was also in recognition of the financial support his brother had provided him.

29. The applicant is currently residing with his Australian citizen brother who leases a property in Berala, NSW. The lease is in the name of the applicant's brother. The applicant and his brother have resided at the property for three years and the lease is up for renewal. The applicant resides with his brother rent-free due to cultural and family customs. The applicant stated that he is financially supported by his brother and parents. His brother gives the applicant approximately $200 per week and the applicant's parents regularly send him money via remittances. The applicant gave evidence that his mother has recently visited Australia and bought over approximately $4,000 of cash and some gold which will be used to financially support the applicant. The applicant offsets the financial support provided by his brother by assisting with housework.

30. The applicant gave evidence that he has never been an unlawful non-citizen. Records obtained by the Tribunal confirm the same.

31. The applicant also gave evidence that he has never breached any visa conditions to which his visas have been subject, including the no work condition, as he has always been financially supported by his brother and parents. The applicant assured the Tribunal Member that he understood the visa conditions to which the Medical Treatment visa would be subject, including the no work condition and would not undertake any work. The applicant provided details regarding the cost of his medical treatment and assured the Tribunal Member that he had sufficient funds, including to pay for his haematologist consultations, PET scan, general medical practitioner and miscellaneous medical expenses.

32. The Tribunal Member told the applicant that the Tribunal Member had reviewed the applicant’s migration history which suggested that he wished to stay permanently in Australia and would not leave. The applicant denied having such an intention stating that he would depart Australia after his May haematologist’s review. He stated that he had purchased a ticket in 2019 and extended the ticket three times but due to COVID-19 was unable to travel. He also referred to his current visa being subject to a no travel condition and wanting to pursue his administrative review at the Tribunal. He stated that unlike many other applicants he has suffered from stage two cancer, undergone chemotherapy and that his whole life has changed. He also referred to he's previous travel to Pakistan to visit family which he submitted was inconsistent with him having an intention of remaining permanently in Australia. He also referred to having a wife and child who he wants to see, especially given his son is young and in his formative and developing years.

1. The Tribunal notes the applicant’s following travel movements:

   a.Arrived in Australia on 12 August 2014;

   b.Departed Australia on 12 January 2016 and returned on 2 March 2016;

   c.Departed Australia on 6 October 2017 and returned on 11 January 2018;

   d.Departed Australia on 13 February 2018 and returned on 17 April 2018;

   e.Departed Australia on 16 October 2018 and returned on 29 December 2018; and

   f.Departed Australia on 16 July 2019 and returned on 3 September 2019.

2. The applicant gave evidence that he is seeking the Medical Treatment visa for the purposes of a review from his haematologist for Hodgkin's lymphoma. The Tribunal Member stated she was aware of the applicant’s medical history and accepted that the applicant had suffered from Hodgkin's lymphoma and had great sympathy for his health plight, however it was not sufficient to satisfy the visa criteria pursuant to cl 602.215.

3. The Tribunal Member asked the applicant what evidence he had of attending a review since lodging his visa application. The applicant replied that he had not attended any review. The Tribunal Member asked why not given he had had approximately 10 months since the time of application and 11 months since his haematologist signed the Form 1507. The applicant explained that the review is already in his haematologist’s computer system as part of an annual review, and that as his last review was on the 23 May 2022, the haematologist had scheduled his review within the following 12 months on 1 May 2022. He further explained that although he had undertaken his substantive treatment, he is subject to a mandatory annual review and must have a seven year clearance post his original cancer diagnosis in case he goes into remission. The applicant explained that if he observed or experienced any physical changes such as fevers, and night sweats, he is to present to his general practitioner (GP) who can then refer the applicant to his haematologist should he require a medical intervention before his next annual review.

4. The Tribunal Member asked the applicant whether he had any evidence of a relapse. The applicant replied that in 2022 he presented to his in GP who undertook blood tests which showed spots in his lymph nodes, but due to them being small, it was decided the applicant would be monitored. The Tribunal Member stated there was no evidence of these tests before the Tribunal. The applicant stated he had not obtained evidence from his GP as he did not think it was required of him.

5. The Tribunal Member noted that the representative at [9] of his submissions claimed the applicant could not receive medical treatment in Pakistan. The Tribunal Member asked what evidence the applicant had to support this assertion. The applicant appropriately conceded he did not have any medical evidence to support these claims but relied on his general knowledge as he had lived in Pakistan and his family live there, and he knows there is only one PET machine available. He stated he would have to wait approximately two years before getting access to it, putting his life at risk.

6. The Tribunal Member asked what arrangements if any the applicated made to return home to Pakistan given the applicant’s claims that he only sought to remain in Australia until 4 July 2023, which at the time of hearing was less than three months away. The applicant conceded he had not made any arrangements including that he was yet to purchase a ticket. He however claimed he would return home as he had not seen his family and son for three and a half years. The Tribunal Member explained to the applicant that the Medical Treatment visa is not a permanent visa and that once the applicant completes his review in May 2023, it is expected that he departs Australia. The applicant indicated that he understood.

   FINDINGS and REASONS

7. In the present case, the visa applicant seeks the visa for the purposes of medical treatment namely medical review from his haematologist following an earlier cancer diagnosis. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

8. There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicant’s last substantive visa, or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa. The Tribunal accepts that the applicant will be financially supported by his brother and family and that there are sufficient funds to finance the applicant’s stay.

9. The Tribunal has considered all relevant matters. The applicant first arrived in Australia on 12 August 2014 on a Student (Subclass 573) visa. As indicated in [33] the applicant has departed Australia on five separate occasions since his original arrival, including to visit his family, marry and visit his wife (and during this time conceived a child) and to be present for the birth of his son. The Tribunal Member considers these departures significant and inconsistent with the applicant having an intention of remaining permanently in Australia. The Tribunal Member further accepts the applicant’s oral claims that he wishes to return to Pakistan to be reunited with his family. Of significance, the Tribunal notes that the applicant has never applied for a permanent visa such as a protection or partner visa or sought Ministerial Intervention which tend to suggest an intention to remain in Australia permanently. Although the applicant sought administrative and judicial review following the refusal of his Student visa, the applicant was well within his rights to do so, and the Tribunal does not place any adverse weight on the applicant exercising these rights. Overall, the Tribunal Member places some positive weight in the applicant's favour concerning his migration history.

10. The Tribunal Member has also carefully considered the medical evidence. The Tribunal Member accepts the applicant is seeking a medical review for his Hodgkin’s lymphoma which is supported by the Form 1507, email correspondence from the Institute of Haematology and medical history. The Tribunal accepts the applicant's claims that he is subject to a seven year cancer clearance and that the 1 May 2023 review is the applicant's final review, and that the applicant will depart after this review. The Tribunal Member further found the applicant’s oral evidence to be credible and reliable and overall regarded the applicant as a witness of truth. The Tribunal Member is satisfied that the applicant understands that the Medical Treatment visa is not a permanent visa, and that the applicant will depart after his final haematologist’s review and that moving forward into the future, the applicant will have to live and monitor his condition as best as he can in Pakistan following his seven year cancer clearance in Australia.

11. The Tribunal has also considered the applicant’s personal circumstances and is satisfied that the applicant has a genuine intention of staying temporarily in Australia. The applicant has a significant family network in Pakistan, including a wife, young son, a brother and his parents who he has visited five times since his original arrival. Although the applicant has and Australian citizen brother, this is outweighed by his family network in Pakistan. The Tribunal further notes that the applicant’s other brother is on a temporary visa only. Although the applicant admitted to recently entering into a relationship, the Tribunal notes that it is not of a longstanding duration, and therefore places limited weight on it.

12. Overall, the evidence indicates, and the Tribunal finds, that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment and that he satisfies cl.602.215 and the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

13. The Tribunal further notes that the applicant has discharged his debt to the Commonwealth and therefore the applicant satisfies the Public Interest Criterion 4004 and cl. 602.217(1) of the Regulations.

    DECISION

14. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

    ·cl 602.215 of Schedule 2 to the Regulations.

    Naomi Schmitz
    Member