Wolff (Migration)

[2022] AATA 3579

Wolff (Migration) [2022] AATA 3579 (29 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nicco Wolff

REPRESENTATIVE:  Mr Charles Johanes (MARN: 0317173)

CASE NUMBER:  2100489

HOME AFFAIRS REFERENCE:               BCC2020/2842429

MEMBER:L. Symons

DATE:29 August 2022

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 29 August 2022 at 5:12pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – incentive to remain in Australia – an unlawful non-citizen – adverse migration history – strong motivation to remain in Australia indefinitely – daughter in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 57, 65

Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 December 2020 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 to the Department of Immigration (the Department) for the visa on 17 December 2020. 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 he was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 15 January 2021, the applicant applied to the Tribunal for a view of that decision.  

4. The applicant appeared before the Tribunal, via telephone, on 19 August 2022 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his migration agent, Mr Charles Johanes, who attended the hearing via telephone.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant satisfies the requirements in cl.602.215.

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

8. 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.

9. The evidence before the Tribunal indicates that the applicant was in Australia at the time that the application for a Medical Treatment visa was filed on 17 December 2020 and has remained in Australia since then. Therefore, the Tribunal finds that he meets the requirements of cl.602.212(6)(a). The evidence before the Tribunal indicates that he was born on 19 December 1984, is accordingly 37 years old and has not turned 50 years. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(b).

10. The applicant has not claimed and there is no evidence before the Tribunal to indicate that he 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. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(c).

11. The applicant has not claimed that he is medically unfit to depart Australia or provided any medical evidence to that effect. There is no evidence before the Tribunal from a Medical Officer of the Commonwealth. The Tribunal is accordingly not satisfied that he 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. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(d).

12. Given the above findings, the requirements in cl 602.212(6) are not met and, accordingly, the requirement in cl 602.215 does apply.

13. In the present case, the applicant has applied for a Medical Treatment visa for the purposes of seeking treatment for Trigeminal Neuralgia for a period of 1 year from 17 December 2020 to 17 December 2021. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

14. In considering whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal has had regard to whether he has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by him was subject. He has filed with the Tribunal a copy of the Department’s Decision Record dated 30 December 2020. It indicates that the last substantive visa he held was a subclass 457 Temporary Work (Skilled) visa that was valid until 16 June 2017. It indicates that he did not comply with visa conditions and remained in Australia as an unlawful non-citizen from 17 June 2017 until he applied for a subclass 602 Medical Treatment visa on 17 December 2020.  

15. During the hearing, the applicant gave evidence that he instructed his former migration agent to apply for a subclass 457 Temporary Work (Skilled) visa on his behalf. He stated that he received a sponsorship to work as a landscaper. Three months after he obtained the visa, he was involved in a serious motor vehicle accident and had a long period of recovery. He contacted his former migration agent and was advised to write to his employer about the accident which he did. For the next one and a half years he focussed on his recovery and kept in contact with his employer. He thought he could return to work after he recovered. He then found out that his subclass 457 Temporary Work (Skilled) visa was only valid for 18 months and that he had been living in Australia was an unlawful non-citizen. Both he and his employer were under the impression that his visa was valid for 24 months. His former migration agent had only applied for a subclass 457 Temporary Work (Skilled) visa for a period of 18 months.

16. In considering the applicant’s intention to comply with the conditions to which the subclass 602 Medical Treatment visa would be subject, the Tribunal has had regard to relevant information provided by the applicant to the Department and the Tribunal. On 21 December 2020, the delegate wrote to the applicant, pursuant to s.57 of the Act, and put to him adverse information in relation to his immigration history in Australia. In his response dated 28 December 2020, he stated that he had applied for a subclass 602 Medical Treatment visa to regularise his stay and seek Ministerial intervention.

17. The applicant’s evidence to the Tribunal is that he has a daughter who is almost 3 years old. She lives in Australia with her mother and is an Australian citizen. Although he is separated from his daughter’s mother, he has been actively involved in her life and wishes to continue this role in her life. He cherishes the time he spends with his daughter Maliah and his life would be without meaning if he has to leave Australia and cannot be with his daughter especially during her formative years. His daughter is very attached to him and he is concerned about the impact on her and the hardship she would suffer if he has to leave Australia. It is his intention to make a request for Ministerial intervention.      

18. The applicant’s evidence to the Tribunal clearly indicates that it is not his intention to seek a subclass 602 Medical Treatment visa to remain in Australia temporarily for medical treatment or related purposes. His evidence indicates that he wishes to live in Australia permanently so that he can remain actively involved in his daughter’s life and that he intends requesting Ministerial intervention so that he can continue to do so.

19. In view of the above, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Therefore, the Tribunal finds that he does not meet the requirements of cl 602.215.

20. The applicant has provided the Tribunal with a number of supporting documents that are relevant to his request for Ministerial intervention. He is represented by a lawyer and is now able to make a request for Ministerial intervention.  

    CONCLUSION

21. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    decision

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

    L. Symons

    
    

    Member