Wang (Migration) - [2023] AATA 468

Wang (Migration) [2023] AATA 468 (8 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yu-hsiang Wang
CASE NUMBER:  2205188
HOME AFFAIRS REFERENCE(S):          BCC2021/834525
MEMBER:Meena Sripathy
DATE:8 March 2023
PLACE OF DECISION:  Sydney
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 602.212 of Schedule 2 to the Regulations; and
·cl 602.215 of Schedule 2 to the Regulations

Statement made on 08 March 2023 at 2:59pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – workplace injury in Australia – regular and multiple treatments from various specialists including spinal treatment – treatments covered by the insurer – no incentive to return home – substantial compliance with visa conditions – periods of unlawful residence – accessing medical treatment in Taiwan – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215
CASES
DET22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 774
El Mir v MICMSMA (No 2) [2021] FCCA 1093
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 April 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).
The applicant applied for the visa on 12 January 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).
The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant genuinely intends to remain in Australia on a temporary basis, having regard to his migration history and insufficient evidence to demonstrate his intention or incentive to depart Australia now or in the near future.
The applicant appeared before the Tribunal on 8 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, or whether that requirement does not apply because the applicant is medically unfit to depart.
The Tribunal has considered whether it is necessary in considering cl.602.215, to first identify the relevant purpose of the applicant’s application for the visa which must be a purpose permitted by cl. 602.212, as suggested by the Federal Circuit Court of Australia in the judgement El Mir v MICMSMA.[1] However, a more recent decision of the Federal Circuit Court in DET22 v Minister for Immigration, Citizenship and Multicultural Affairs[2] held that judgment in El Mir does not establish any general principle that in every case the Tribunal is required to consider all of the potentially relevant subclauses within cl 602.212 before considering whether an applicant meets cl 602.215, though it was acknowledged that there may well be cases where this is appropriate or necessary.
[1] El Mir v MICMSMA (No 2) [2021] FCCA 1093
[2] [2022] FedCFamC2G 774
The Tribunal has considered the above judicial authorities and observes, in this case, the applicant was invited to a hearing to give evidence and present arguments arising in the review during which both clauses 602.212 and 602.215 were explained and discussed.
The applicant was initially invited to attend a hearing before the Tribunal on 19 December 2022 at 2.30pm but did not appear. Following contact made with the applicant, he advised he did not receive the hearing invitation. On 21 December 2022 the Tribunal invited the applicant to attend a hearing on 8 February 2023 to present arguments and give evidence.
On 20 December the Tribunal invited the applicant to provide information addressing the issues arising in the review, including cl.602.215 and 602.212.
On 20 December 2022 and 11 January 2023 the Tribunal received the following documents from the applicant:
·Certificate of capacity/certificate of fitness State Insurance Regulatory Authority forms in respect of the applicant dated for August -October 2022 signed by Dr Lam relating to two different employers
·Letter dated 10 January 2023 from Dr Angela Lam, applicant’s treating GP setting out the background of workplace injuries suffered in 2016 and 2017 and confirming that he is currently under the care of multiple specialists and remains unfit for work.
·Two Certificate of capacity/certificate of fitness State Insurance Regulatory Authority forms in respect of the applicant dated 10 January 2023 signed by Dr Lam relating to two different employers
At the hearing the applicant provided the following evidence. He lives in shared accommodation in Burwood and pays rent of $300 per week. He receives income from the insurer of between $700-$740 per week. He has been receiving insurance income since his injury in 2016, although there was a period of one or one and a half years when the insurance payments ceased. His lawyers helped him with this and the payments resumed. During this period he managed by living on the savings he accumulated. He was also assisted by some friends.
The applicant confirmed he arrived in Australia in March 2014 on a working holiday visa. He was granted a second working holiday visa after that. In 2016 he was granted a student visa. He explained that he returned to Taiwan once, in March 2014 to attend the funeral of his father who died in a car accident. The applicant returned again in August that same year to perform a traditional duty relating to his father’s ashes. He has not returned to his home country since then. In March 2016 he suffered a workplace injury at a construction site in Mascot, just before his working holiday visa expired on 12 March 2016. He did not speak much English at that time and, perhaps wrongly, applied for and was granted a Student visa. He paid his tuition fees but due to his injuries he could not attend classes. After his student visa expired in 2019 he was advised by Workcover and the lawyer assisting him with the compensation matter to apply for a Medical Treatment visa to allow him to remain in Australia for medical treatment. He has been granted a series of Medical Treatment visas since then. He does not know why they are granted for three month periods only as the treatment he requires is longer term. He just wants to stay in Australia to be able to continue his treatment.
The Tribunal discussed with the applicant the issue before it. First it must be satisfied that he continues to seek medical treatment, noting the period that he sought the visa for (to September 2022) has now passed. It asked him what treatment he has sought and obtained since making the application and what treatment he intends to obtain in future. The applicant explained that he has had various appointments and treatments including spinal treatment, issues relating to his stomach, pain management and for PTSD. He referred the Tribunal to the letter provided by his GP which explains what he has had and still needs. All of his appointments to date have been paid for by the insurer. He has a rehabilitation caseworker who arranges it all for him. The Tribunal asked if this person can provide evidence to support this. He said he can ask them. The Tribunal asked until when will the insurer pay for his treatment. He believes it will be until he needs it because the accident happened at work and so they are liable to cover it. His next scheduled appointment is on 16 February 2023 and he is also awaiting an appointment at Westmead for his stomach issues.
With the Tribunal’s permission the Tribunal called Ms Choe Chau, the applicant’s rehabilitation caseworker. She confirmed she provides return to work assistance and worker support for the applicant due to his work injury. She confirmed that he attends a range of appointments with medical professionals including specialists and that the insurer to date has paid for them all. The next appointment he has is with the pain specialist on 16 February 2023. At this stage he has nothing further arranged.
The Tribunal discussed with the applicant the next issue is whether he genuinely intends to stay temporarily for the purpose for which the visa is granted. The applicant repeated that he does not understand why, despite his GP providing a plan of treatment to the Department they continue to grant only 3 month visas. His plan is to undertake the medical treatment and to pursue his work cover case. He only wants to seek what is due to him as a result of sustaining an injury at work. If he returns to Taiwan, he is not eligible to have his medical costs covered because he has not paid into the insurance scheme there because he has been here for 9 years. If he leaves Australia the insurer will no longer cover his medical costs.
The Tribunal put to him that its concern is that he has been here since 2014, has no close family to return to and his medical costs may not be covered and these are all reasons to be concerned that he has no incentive to return home and hence his intention to stay temporarily may not be genuine and invited his response. He said he does not agree, he only wants to stay for the purpose of his medical treatment and he has been advised this is the appropriate visa for that. He has always complied with visa conditions. He agrees he doesn’t have much to return to since his father died but he will only stay here if it is lawful to do so. The reason it has taken so long is not his fault. It is also because of the circumstances of COVID it has been difficult to get to the specialists.
The Tribunal invited the applicant to provide further evidence of the medical treatment he has had and treatment plans in the future.
On 8 and 9 February 2023 the applicant sent the following documents to support his claims that he has been seeking medical treatment last year, and evidence that this treatment was paid for by the insurer:
·Activities of Daily Living Assessment Report dated 31 January 2023 prepared for GIO by Chloe Chau setting out his current treatments.
·Letter dated 1 July 2022 from Dr Zhen Zhang, of Sydney Central Psychiatrists, to Dr Angela Lam indicating that he has been seeing the applicant regularly and will review him again in 4 weeks
·Letter dated 14 November 2022 from Dr Zhen Zhang, of Sydney Central Psychiatrists, to Dr Angela Lam indicating that he will review the applicant again in 4 weeks
·Various GIO Approvals for Service/Item Requests - Mr Simon Port of Inner City Psychology Services, MRI Now, and Dr Alan Ting of Chatswood Nuclear Medicine and Endocrinology.
On 3 March 2023 the applicant provided a screen shot showing his current account balance and evidence of payment advices for weekly workers compensation payments made to him in January -February 2023.
Are the medical treatment requirements met?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl 602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:
·the arrangements for treatment have been concluded
·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
At the time of application, the evidence indicates the applicant sought the visa until September 2022 to seek medical treatment for mental health sessions, a gastroscopy and colonoscopy.
In his evidence to the Tribunal and documents provided to the Tribunal since then, he indicated that he has been undertaking regular and multiple treatments from various specialists since the application was made. He sees a psychiatrist once a month, has been referred to a pain specialist on 16 February 2023 and is awaiting an appointment for a gastroenterologist and rheumatologist. He stated that to date all of his treatments have been paid for by the workplace insurer and he understands the will continue to pay for them as long as necessary. This was confirmed in the oral evidence from Ms Chau, who is assisting him with his workplace injury claim. He also submitted numerous GIO Approval letters which supports his oral evidence. He indicated he is in receipt of workers compensation income, which he uses for his daily expenses.
On the evidence referred to above the Tribunal accepts the applicant suffered two workplace accidents in 2016 and 2017 and has an ongoing workers compensation claim. He is presently receiving weekly workers compensation payments and the insurer has been covering the cost of his medical treatment to date and continues to approve requests for services. On the basis of the letter from his treating GP, the latest assessment from his rehabilitation case worker and his oral evidence, the Tribunal accepts the applicant is receiving ongoing medical treatment arising from his workplace injuries and the insurer is covering the cost of his treatment under the relevant workplace insurance. While the applicant has not provided evidence of any specific upcoming appointments, the Tribunal accepts on the evidence of his treating GP that he continues to be under the care of multiple specialists and continues to require medical treatment relating to his injuries sustained in the workplace accidents.
The Tribunal is therefore satisfied the applicant is seeking medical treatment. It accepts that arrangements for the costs of that treatment are covered by GIO as they have been to date. It accepts that the applicant is in receipt of weekly compensation payments which is sufficient to cover his expenses for the period of stay.
Given the above findings, the Tribunal is satisfied the requirements in cl 602.212(2) are met.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter.
This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6) 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.
As the applicant is under 50 years old, cl.602.212(6) does not apply and accordingly, the requirement in cl 602.215 applies.
In the present case, the visa applicant seeks the visa for the purposes of medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.
The Tribunal has considered the matters referred to in cl.602.215. In relation to whether the applicant has complied substantially with the conditions of his last held substantive visa or any subsequent bridging visa, the Tribunal observes the last substantive visa he held was the Medical Treatment visa granted on 12 October 2021 that was valid to 12 January 2022, and he was subsequently granted a Bridging visa. These visas had conditions 8101 and 8201. There is no evidence before the Tribunal to indicate he did not comply with the conditions on these visas.
Regarding his earlier visa history, the Tribunal observes the applicant had already been granted five Medical Treatment visas in succession, each valid for three month periods, on 11 March 2020, 12 June 2020, 11 September 2020, 30 December 2020, and 1 June 2021. The application which is the subject of the present review is his 7^th successive application for a Medical Treatment visa. The evidence before the Tribunal of the applicant’s visa history demonstrates that he has substantially maintained lawful status throughout his period in Australia, since arrival in 2014. It notes there were two periods when he appeared to hold no visa between15 April 2019 and 10 February 2020 and again between 11 September 2020 and 30 December 2020. The Tribunal has considered the applicant’s explanations for these periods and takes into account the circumstances of the COVID 19 pandemic in 2020 and, taking all of this into account, it is satisfied that he has substantially complied with visa conditions and maintained lawful status in Australia throughout the time he has been here.
Regarding other relevant matters the Tribunal has considered the applicant’s incentives to remain in Australia and his incentives to return to his home country. It accepts that he has been living in Australia now for 9 years. He has no close family here and is presently unfit for work due to injuries suffered in workplace accidents that occurred in Australia. On his own evidence, the Tribunal accepts that he has no close family in Taiwan, as his father passed away in 2014, and he is not in contact with the half siblings he has. He told the Tribunal he believes he would have difficulty in Taiwan accessing medical treatment because he has been absent from the country for so long and has not contributed to insurance there. The Tribunal is not convinced that he would not be able to access any medical treatment there, given independent information before it that indicates Taiwan has a universal healthcare system since 1995 which appears to cover everyone, regardless of income.[3] However notwithstanding this, it accepts that, given his particular circumstances and current health conditions, he is reluctant to disrupting his treatment plan here at this point in time while he is still under the care of several specialists and while his insurer remains liable for, and is, covering the costs. The applicant indicated that his intention is only to access the medical treatment he needs and is entitled to get under the workers compensation insurance scheme given that he suffered workplace injuries here. He claims that he has always complied with his visa conditions and will do so in future. While conceding that he has little incentive to return home and would like to live in Australia he told the Tribunal he would only do so on a legal basis.
[3] An overview of the healthcare system in Taiwan - PMC (nih.gov); 6 Facts About Healthcare in Taiwan - The Borgen Project

The Tribunal finds the applicant’s evidence about this to be honest and candidly given. His stated intentions are supported by his conduct and regular engagement with the Department and the fact that he has made timely applications (save for one or two exceptions) upon expiry of his previous temporary visas.
Having regard to his general compliance to date, ongoing receipt of weekly compensation, and ongoing need for medical treatment the Tribunal accepts that the applicant will comply with conditions imposed on the visa.
The Tribunal accepts the applicant has an ongoing need for medical treatment in Australia and insurance coverage for his medical treatment and living expenses while here. He has been compliant with conditions to date and has regularly engaged with the Department in respect of his visa status.
There is no basis, in the Tribunal’s view, to not accept that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Therefore the Tribunal is satisfied that cl 602.215 is met.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.
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 602.212 of Schedule 2 to the Regulations; and
·cl 602.215 of Schedule 2 to the Regulations.
Meena Sripathy
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).