Singh (Migration)

[2023] AATA 510

Singh (Migration) [2023] AATA 510 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahendra Pratap Singh

CASE NUMBER:  2202552

HOME AFFAIRS REFERENCE(S):          BCC2021/75048

MEMBER:Rachel Da Costa

DATE:4 January 2023

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 04 January 2023 at 12:22pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant does not genuinely intend to remain in Australia on a temporary basis – applicant is not medically unfit to depart Australia – lack of end-date for the applicant’s treatment – incentive for the applicant to remain in Australia indefinitely – applicant has no real family or economic ties in Fiji – compassionate circumstances – referral for Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 2, cl 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 9 February 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 24 December 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 was not satisfied that the applicant met the requirements in clause 602.215. The delegate found that the applicant was attempting to use the Medical Treatment visa pathway as a means to maintaining ongoing residence in Australia and that he did not genuinely intend to remain in Australia on a temporary basis.

4. The applicant lodged his application for review of the delegate’s decision on 25 February 2022. He provided a copy of the delegate’s decision with his application.

5. The Tribunal notes that the applicant’s three adult children have all lodged separate Medical Treatment (Support Person) visa applications as support persons for the applicant during his medical treatment. Those applications are considered in separate case files as follows: Mr Anal Singh (2202548), Ms Sheryl Singh (2202553) and Ms Anjulesh Singh (2202554).

   Documents provided to the Department

6. The applicant provided the following documents to the Department in support of his application:

   ·     Medical Treatment visa application form dated 24 December 2021 (electronic and handwritten copies);

   ·     Form 1507 completed by Dr Soheyl Darzikolahi of MyHealth Medical Centre, Liverpool. The form states the medical condition requiring treatment is “Diabetes Mellitus Type 2 and Cerebrovascular Accident” and the treatment information is listed as “Diabetic medication; diabetic cycle of care reviews; anti-hypertensive therapy”.

   ·     birth certificate of the applicant;

   ·     birth certificate of the applicant’s son, Anal Singh;

   ·     copy of application form for a Medical Treatment visa by Anal Singh dated 24 December 2021;

   ·     bank statements of Anal Singh from 3 December 2021 to 24 December 2021;

   ·     bio-data page of the applicant’s passport issued on 7 June 2010 by the Republic of the Fiji Islands;

7. On 30 December 2021, the Department wrote to the applicant inviting him to comment on unfavourable information that may lead to a decision to refuse his application. The information referred to in the letter is that the applicant last entered Australia on 14 June 2007 and has not departed since. He has previously demonstrated his intention to obtain a permanent visa by applying for a Regional Sponsored Migration Scheme (Full) (BW 857) visa which was refused on 21 January 2011. The applicant has also applied for a permanent Protection visa (subclass 866) which was refused on 28 March 2013. He unsuccessfully sought review of that decision in the Refugee Review Tribunal, the Federal Court, the Full Federal Court and the High Court. He has also unsuccessfully sought Ministerial Intervention. The applicant has spent time in Australia as an unlawful non-citizen and has not held a substantive visa since 23 November 2008.

8. In response to this letter, the applicant provided the following documents:

   ·     decision of this Tribunal dated 28 October 2021 (differently constituted from the current case) remitting the applicant’s application for a previous Medical Treatment visa which the applicant applied for on 30 March 2020 (case number 2010163);

   ·     Form 956 dated 5 January 2022 appointing Anal Singh as the applicant’s representative and authorised recipient;

   ·     email dated 17 January 2022 which appears to have been written by Anal Singh. The email invites the delegate to consider the Tribunal’s decision made in the applicant’s favour, notes that his mother (the applicant’s wife) died and explains that the applicant is unfit to travel and unable to receive his required medical treatment in Fiji. The email states that the medical treatment visa application is genuine and they have the intention to return to Fiji after completing the medical treatment for their father (the applicant).

   Documents provided to the Tribunal

9. The applicant provided the following documents to the Tribunal in support of his application:

   ·     Statutory declaration made 22 February 2022 from Nitya Makaraj stating that they provide some financial support to the applicant for his food and clothing and medical expenses each fortnight;

   ·     Letter from Dr C.E. Connolly, Senior Staff Specialist in Rehabilitation Medicine at Braeside Hospital, Prairiewood, NSW dated 9 February 2022 in support of the applicant’s visa application. Dr Connolly states that he has been seeing the applicant in his capacity as a Rehabilitation Medicine Physician for over two years and the applicant has an acquired brain injury (stroke) which has caused:

   ·     paralysis of the right upper and lower limbs;

   ·     impaired understanding and expression of speech;

   ·     impaired swallowing;

   ·     no function in his right arm or hand and he has painful spasms in the right arm and leg;

   ·     post-stroke epilepsy for which he requires regular medication to prevent seizures.

   The letter goes on to explain that the applicant cannot walk, requires the assistance of a carer to toilet, shower and dress and that he is vulnerable to infection. He is frail and immobile. The doctor advises against the applicant travelling long distances either overseas or within Australia and that the stress of overseas travel will most likely increase his blood pressure and may result in a further stroke. Dr Connolly states that the coordinated rehabilitation services the applicant requires are not accessible in Fiji which means he will most likely suffer complications from his disability and have a shortened life expectancy.

   ·     Request for a fee reduction;

10. After the first hearing, the applicant also provided a letter dated 5 December 2022 from Ms Dominika Daminska, Social Worker, Chronic and Complex Services, Western Sydney Local Health District describing the applicant’s circumstances and requirements, and a document dated 23 November 2022 from Dr Win Moe, Plumpton Medical Centre, listing the applicant’s current medications and his past medical history.

11. The Tribunal has carefully considered all the documents provided by the applicant in support of his application.

    The hearings and the applicant’s capacity to give evidence

12. As referred to above in the letter from Dr Connolly, the applicant has suffered a stroke and has limited mobility, impaired cognitive capacity and is unable to speak. The Tribunal accepts this evidence about the applicant’s circumstances.

13. In light of these circumstances, the Tribunal offered the applicant and his children a combined hearing using the Microsoft Teams (MS Teams) videoconference platform to avoid them having to travel to the Tribunal’s premises. They consented to this.

14. Based on the Tribunal’s own observations of the applicant via MS Teams video and the medical evidence provided by Dr Connolly, it was clear to the Tribunal that the applicant does not have the capacity to give oral evidence in the hearing. Sadly, the applicant cannot speak due to his stroke, but he was able to respond positively or negatively to some basic questions from the Tribunal by moving his arm. This indicated to the Tribunal that while, according to Dr Connolly’s letter, the applicant has impaired cognition, he was still able to follow the discussion to an extent even though he was not able to actively participate in it. Anal Singh[1] confirmed that the applicant can understand, but sometimes he gets confused.

    [1] For ease of reference, from this point the Tribunal will refer to Mr Anal Singh as “Mr Singh” and the applicant, Mr Mahendra Singh, as “the applicant”.

15. On this basis, the Tribunal discussed with Mr Singh, who has been the main person assisting the applicant in this matter, that it would ask him to give oral evidence to the Tribunal about the applicant’s situation and Mr Singh agreed to this. The Tribunal considered that this was the most appropriate way to proceed given Mr Singh lives with the applicant full-time and has detailed knowledge of the applicant’s history and circumstances, medical conditions and treatment. The Tribunal formed the view that the oral evidence from Mr Singh combined with the documentary evidence available would provide a sufficient basis for it to be able to make a decision in the applicant’s case. The Tribunal also gave the applicant’s two adult daughters the opportunity to give evidence about their father’s situation and visa application (as well as their own).

16. The applicant appeared before the Tribunal on 16 November 2022 and 21 December 2022 by MS Teams video. His adult children were also present in the hearing and as already mentioned, gave oral evidence in support of the applicant’s application for a Medical Treatment visa.

17. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. Mr Singh did not require the assistance of the interpreter and his sisters only requested the assistance of the interpreter on a couple of occasions. However, to enable the applicant to have the best chance of following the discussion as far as possible, the Tribunal requested the interpreter to interpret while the Tribunal was receiving oral evidence from the applicant’s children in respect of the applicant’s visa application. 

18. In deciding to proceed in this way, the Tribunal took into account the Migration and Refugee Division Guidelines on Vulnerable Persons from November 2018[2] to ensure that the applicant was not disadvantaged in the review process.

    [2]

    The applicant’s background

19. The applicant is a 64-year-old citizen of Fiji. In Fiji, he has a sister who lives in Lautoka and another son who lives in Nadi, but they are not in regular contact. He does not have any assets in Fiji or economic ties.

20. In Australia, prior to suffering his stroke, the applicant worked for a tiling company. In Australia, he has three sisters and his three adult children. His wife passed away around one year ago from cancer. He lives with his three children and is supported financially by them and cared for by them. For the most part, his son and daughter, Anjulesh, work to earn money to support the family and his daughter, Sheryl, is his primary carer. He does not have any assets in Australia.

    The applicant’s visa and migration history

21. Based on information contained in the delegate’s decision, other documents on the Departmental and Tribunal files, and oral evidence from Mr Singh, the applicant’s migration history is as follows:

    ·     The applicant last arrived in Australia on 14 June 2007 and has not departed since. He held a Temporary Skilled (subclass 457) visa which ceased on 23 November 2008.

    ·     On 15 September 2008, the applicant applied for a further subclass 457 visa which was refused. He unsuccessfully sought review of that decision in the Migration Review Tribunal.

    ·     On 31 December 2009, the applicant applied for a Regional Sponsored Migration Scheme (subclass 857) visa, which is a permanent visa. This was refused on 21 January 2011. The applicant unsuccessfully sought review of this decision in the Migration Review Tribunal.

    ·     On 2 July 2012, he applied for a Protection visa, which is also a permanent visa. This was refused on 28 March 2013. The applicant unsuccessfully sought review of this decision all the way to the High Court of Australia.

    ·     Between 22 November 2013 and 30 April 2019, the applicant has unsuccessfully sought Ministerial Intervention on four occasions.

    ·     He has spent one month in Australia as an unlawful non-citizen.

    ·     He applied for a previous Medical Treatment visa which was refused by the delegate on 1 June 2020. On 28 October 2021, the Tribunal remitted this decision for reconsideration however the visa was not granted.

    ·     The applicant applied for the Medical Treatment visa that is the subject of this application for review on 24 December 2021.

22. Since 2008, the applicant has held a series of Bridging visas while his visa applications have been refused and associated appeals have been unsuccessful, apart from the period when he held no visa at all. The applicant currently holds a Bridging Visa E (class WE) (subclass 050) visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

24. 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.

    Is the applicant unfit to depart Australia?

25. Clause 602.212(6) 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.

26. The Tribunal accepts that the applicant is in Australia. The applicant has provided evidence that he was born in January 1958, which means he is 64 years old.

27. Documentary evidence before the Tribunal shows that the applicant applied for a Protection visa in 2012 but his application was refused. Based on the evidence before it, the Tribunal understands that the applicant was refused a Protection visa because he did not meet the criteria for that visa,[3] which are either that he is owed protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds. The material before the Tribunal does not indicate that the applicant appears to have met all the criteria for a Protection visa other than the health criteria.

    [3] As set out in s 36 of the Act and Schedule 2 to the Regulations.

28. While the letters from Dr Connolly and Ms Daminska dated 9 February 2022 and 5 December 2022 respectively, advise against overseas travel for the applicant due to health reasons, there is no evidence before the Tribunal to indicate that the applicant 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.

29. The Tribunal finds that the applicant is in Australia and has turned 50, but that he is not medically unfit to depart Australia.

30. Accordingly, the requirements of cl 602.212(6) are not met.

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

31. In the present case, the applicant seeks the visa for the purposes of medical treatment or consultation. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

32. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. The last substantive visa held by the applicant was his Temporary Skilled (subclass 457) visa that ceased on 23 November 2008. Since that time the applicant has held a series of bridging visas. There is no evidence to suggest that the applicant did not comply with the conditions of his last substantive visa or with the conditions of subsequent bridging visas he has held, although the Tribunal notes that he has spent a short period in Australia without a visa.

33. The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject. Medical treatment visas are subject to condition 8201 (no studies) and may be subject to condition 8503 (the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia).

34. There is no evidence to suggest that the applicant intends to study in Australia if he is granted the visa. The Tribunal accepts that the applicant will comply with condition 8201. In relation to condition 8503, the Tribunal notes that the applicant applied for a Protection visa in 2012 and unsuccessfully sought review in the Tribunal and the courts for many years. He also applied unsuccessfully for a Regional Sponsored Migration Scheme (subclass 857) visa and sought review of that decision. He has remained in Australia since 2007 and has applied for two Medical Treatment visas. The Tribunal considers that the applicant has strong motivation to remain in Australia and it is possible, in light of his history and circumstances, that he will take steps to obtain a waiver of this condition.

35. The Tribunal has considered other matters relevant to assessing the applicant’s intention. In the first Tribunal hearing, the Tribunal discussed with Mr Singh the purpose of a medical treatment visa and explained the requirement that an applicant must have a genuine intention to stay temporarily in Australia for the purpose of the visa, and reiterated that it is a temporary visa and not a permanent visa. He said he understood this. The Tribunal asked Mr Singh about the nature of the treatment required for the applicant and he said it was rehabilitation for the applicant’s stroke and management of his diabetes. The Tribunal asked Mr Singh how long the applicant wished to remain in Australia for the purpose of medical treatment and he said they did not know when the treatment would finish because his medical problems are not like if someone has an accident and recovers; he said the applicant requires ongoing care. The Tribunal asked Mr Singh if the applicant had any evidence of a medical treatment plan and he said he would need to call the doctor. The Tribunal asked Mr Singh whether he had any evidence of when the applicant’s medical treatment was due to end and he responded that he did not, and that he and his sisters look after the applicant.

36. Following this preliminary questioning, the Tribunal explained very clearly to Mr Singh, his sisters and the applicant, who were all present in the hearing, that the evidence gave rise to a potential concern about whether the applicant genuinely intends to stay temporarily in Australia, which is what the visa requires. In the context of explaining this concern, the Tribunal offered to give the applicant and Mr Singh the opportunity to obtain more evidence from the applicant’s doctors about a medical treatment plan and whether the medical treatment had an end point. Mr Singh said he understood.

1. In response, on 5 December 2022, the applicant provided a letter dated 5 December 2022 from Dominika Daminska, Social Worker, Chronic and Complex Services, Western Sydney Local Health District explaining the applicant’s current circumstances and a document dated 23 November 2022 from Dr Win Moe, Plumpton Medical Centre, listing the applicant’s current medications and his past medical history.

2. The letter from Ms Daminska explains that the applicant was admitted to hospital due to his seizures and has been referred to allied health services including physiotherapy, occupational therapy, speech therapy and nursing services for further rehabilitation and management of his medical conditions. She states that he is on a waiting list to have these services allocated to him. She states that as a result of his stroke, the applicant is very frail and vulnerable and requires substantial assistance from his children to assist him with all aspects of daily living. She states that in her professional opinion, “appropriate and long-term rehabilitation is essential for people who sustained stroke and I feel strongly that Mr Singh will greatly benefit from continuing his physiotherapy, speech therapy and occupational therapy treatment”. She states that she has real concerns about the potential harmful impact of overseas travel on his health and believes that at present, the applicant is unable to travel to Fiji due to his complex medical needs.

3. At the resumed combined hearing on 21 December 2022, the Tribunal explained that it had considered the letters from Ms Daminska and Dr Moe, as well as the letter previously provided by Dr Connolly. The Tribunal noted that the letters from Ms Daminska and Dr Connolly talk about how the applicant has been affected by the stroke, how this makes him vulnerable and the significant assistance he needs on a day to day basis. The Tribunal noted that the letters talk about the applicant needing ongoing care and they do not give an indication that his treatment will come to an end and in fact, from what they say, it sounds as though the applicant may need ongoing treatment and care indefinitely. The Tribunal also noted that the letters recommend that the applicant not travel, and Dr Connolly states that the rehabilitation treatment available in Australia is not available in Fiji which could have serious consequences for the applicant’s health.

4. The Tribunal put to Mr Singh that while it might be satisfied that there is a type of plan in place for the applicant’s medical treatment, it was difficult to see how and when the medical treatment would end, and that this was a concern because a Medical Treatment visa is a temporary visa. Mr Singh responded that he had spoken with Ms Daminska about the applicant’s treatment and can’t say at this stage when it fill finish.

5. The Tribunal also explained to Mr Singh that the applicant’s migration history, which the Tribunal had discussed with Mr Singh in the first hearing, was of concern. The Tribunal explained that all the steps the applicant has taken to remain in Australia, including applying for permanent visas such as a Protection visa, might indicate to the Tribunal that the applicant intends to remain indefinitely or permanently in Australia and not temporarily. Mr Singh responded that the circumstances have changed since the applicant had his stroke. He said that when the applicant applied for protection, he was well. Now he is awaiting treatment for his stroke. The treating doctors will decide how long his treatment will last and at the moment they can’t say when it will end. The Tribunal referred Mr Singh to the email response provided to the Department stating that the applicant’s medical treatment is genuine and that he had the intention to return to Fiji after his medical treatment was completed. The Tribunal asked Mr Singh whether he had anything further to say about that intention. Mr Singh responded that once the treatment is done they will go back to Fiji.

6. The Tribunal put to Mr Singh that based on the applicant’s past attempts to stay in Australia using the migration system, and now he has a serious medical situation for which he is receiving treatment which is apparently much better than what he would receive in Fiji, that it might find the applicant’s motivation to stay indefinitely or permanently in Australia would be stronger than ever. Mr Singh responded that they are all here because the applicant is not well and needs treatment. He said that the evidence they will go back to Fiji is that if the applicant gets better they will go back to Fiji. He said they tried to apply for protection before, but that is when the applicant was well, but now he is not well and it’s a big change. The Tribunal asked Mr Singh what incentives the applicant would have to return to Fiji at the end of his treatment, given the applicant has been in Australia for a long time, his lack of family and economic ties to Fiji and his efforts to use the migration system to stay in Australia permanently. Mr Singh responded that they have been in Australia a long time and have nothing in Fiji, but once the treatment is done, he will take the applicant back to Fiji and he will do something. The Tribunal asked Mr Singh what incentives the applicant would have to remain in Australia and he responded that he wants the applicant to get his treatment and get well and he can get better treatment here in Australia. The Tribunal asked Mr Singh whether there was anything else he wanted to say about this and he said no, and referred to the letter from Ms Daminska.

7. The Tribunal invited Ms Anjulesh Singh and Ms Sheryl Singh to give evidence about the applicant’s genuine intention to stay temporarily in Australia for the purpose of medical treatment. Ms Anjulesh Singh explained that the applicant was well when they applied for protection, then their mother died of cancer and the applicant had a stroke. She said that they have a hard life here, working and looking after the applicant and they can’t leave him to suffer because he is their father. She and her brother work, and her sister, Sheryl, looks after the applicant. She stated that if the applicant “gets ok” they will go back to Fiji because they have no choice if Australia does not want them. She said it is a dilemma because they have been here for so long and are used to their lives here. It would be hard to start a life in Fiji. Ms Sheryl Singh explained that they want the applicant to be ok if his treatment goes well and then they can take him to Fiji. They can’t do anything else.

8. The Tribunal acknowledges, as it did to the applicant and his children in the hearing, that they are in a sad and difficult position.

9. However, having considered all the evidence, the Tribunal does not accept that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

10. The Tribunal has considered the oral evidence provided by Mr Singh and his sisters, as well as the documents provided in support of the applicant’s application. The Tribunal accepts that the applicant is having medical treatment for his stroke, as described in the letters from Dr Connolly and Ms Daminska, and the Tribunal is prepared to accept that there is a form of treatment plan in place for the applicant’s rehabilitation and management of his medical conditions, as described in Ms Daminska’s letter. However, none of the documentary evidence, or the oral evidence from Mr Singh and his sisters, indicates when and if this medical treatment might come to an end. Mr Singh gave evidence that they do not know when it will come to an end.

11. The Tribunal is prepared to accept the statement from Dr Connolly in his capacity as a Rehabilitation Medicine Physician that the applicant would be unable to access coordinated rehabilitation health care in Fiji[4] and that this and the stress of overseas travel may put his health at serious risk. Combined with the lack of end-date for the applicant’s treatment, the Tribunal considers that these factors provide a further incentive for the applicant to remain in Australia indefinitely or permanently, rather than temporarily.

    [4] Dr Connolly cites a 2017 World Health Organisation Report entitled “Rehabilitation and Disability in the Western Pacific”.

12. The applicant’s migration history, including the fact that he has remained in Australia since 2007 and applied unsuccessfully for two permanent visas, including a Protection visa, and appealed the refusal of his Protection visa all the way to the High Court of Australia, and also appealed other refusals, indicates to the Tribunal that he has a strong motivation to remain in Australia. Further, Mr Singh gave evidence, which the Tribunal accepts, that the applicant has no real family or economic ties in Fiji, but he has three sisters (and his children, albeit with their visa prospects tied to his) in Australia and he has received some financial support from family friends here in the past as well. Combined with the fact that the applicant requires full-time care and has no income, the Tribunal considers that these factors also indicate a strong motivation to remain in Australia where there are people who can assist and support him.

13. The Tribunal has considered the evidence of Mr Singh and his sisters that they want the applicant to remain in Australia for his treatment and when he gets well he, and they, will return to Fiji. They gave evidence that when the applicant applied for protection he was well but since he had his stroke it is a big change, however they did not explain why this was an incentive for the applicant to return to Fiji at the end of his treatment, other than suggesting it is what they would have to do. The Tribunal has considered this evidence and finds that before his stroke, the applicant had taken significant steps to attempt to remain in Australia permanently. The Tribunal does not accept that if the applicant’s treatment is completed and he gets better, that he would have any particular incentive to return to Fiji given his previous attempts to remain in Australia permanently, his lack of family and economic ties to Fiji and the length of time he has already spent in Australia where he has established his life.

14. While it appears that the applicant has complied with the conditions of his past visas (albeit noting that he has spent a short period of time in Australia without a valid visa) and there is no evidence to suggest that the applicant will fail to comply with any conditions that might be attached to a Medical Treatment visa, in the Tribunal’s view these factors do not outweigh its concerns about whether the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

    Findings

15. As discussed above, the Tribunal finds that the applicant has strong incentives to remain in Australia indefinitely or permanently and he does not intend to remain in Australia temporarily. The Tribunal finds that the applicant’s migration and visa history and his personal circumstances all indicate that he intends to remain in Australia indefinitely or permanently. While the Tribunal accepts that the applicant is undertaking medical treatment for his stroke, the Tribunal finds that the medical evidence provided does not support his claim that he intends to stay in Australia temporarily as there is no evidence to indicate when or if this treatment might come to an end. Accordingly, the Tribunal finds 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.

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

    Conclusion

17. 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.

    Referral for Ministerial intervention

18. Section 351 of the Act gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so.

19. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 345, s 351, s 417 and s 501J)’ and has decided to refer the matter for consideration for the following reasons.

20. The Tribunal notes the exceptional circumstance:

    Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

21. The Tribunal accepts the written evidence of Dr Connolly and Ms Daminska referred to above about the nature of the applicant’s medical problems and his ongoing frail and vulnerable state following the stroke he suffered in March 2019. Dr Connolly advises against the applicant travelling long distances, either within Australia or overseas, and expresses the view that “the stress of overseas travel will most likely increase [the applicant’s] blood pressure and may result in a further stroke”. He also expresses concern that the lack of access to coordinated rehabilitation health care in Fiji will most likely cause the applicant to suffer “complications from his disability and have a shortened life expectancy”. The Tribunal also accepts that the applicant requires constant care, which is currently being provided primarily by one of his daughters, and he is being supported financially by his son and other daughter, and that he has no real family or economic ties in Fiji.

22. In light of this, the Tribunal considers that there are compassionate circumstances regarding the applicant’s poor health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to him if he were required to return to Fiji at this time.

    DECISION

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

    Rachel Da Costa
    Member