1716322 (Migration)

[2018] AATA 5258

1716322 (Migration) [2018] AATA 5258 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716322

MEMBER:John Billings

DATE:12 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 November 2018 at 12:03pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – up to date evidence of required therapy or treatment – medically unfit to depart Australia – incentive to remain in Australia – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 362B
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.

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 10 July 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [named], applied for the visa on 28 June 2017. 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 (the Regulations).

3. The delegate was not satisfied that [the applicant] genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and so refused to grant the visa: see cl.602.215.  Among other things, the delegate noted that [the applicant] had not provided up to date material in support of claims that he had to remain in Australia for therapy or treatment. 

4. [The applicant] applied for review on 27 July 2017.  He provided a copy of the primary decision to the Tribunal. 

5. [The applicant] was represented in relation to the review by his registered migration agent.

6. There was no hearing.  On 11 October 2018 the Tribunal sent [the applicant] an invitation to appear before the Tribunal at 10.30 am on 12 November 2018.  The invitation was sent by email to his representative and authorised recipient.  The Tribunal’s case management system records that on 2 and 9 November 2018 the Tribunal sent SMS hearing reminders to the mobile phone number provided by [the applicant].  [The applicant] did not attend the Tribunal at the scheduled hearing time.  The Tribunal has received no explanation for that.  In the circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking further action to enable [the applicant] to appear before it. 

7. [The applicant] is [an age] year old national of [Country 1], born in [Country 2].  He has a wife, aged [age] years, and [children of specified ages], in [Country 1].  [The applicant] arrived in Australia [in] November 2015 holding a [temporary visa].  The [visa] ceased on 27 February 2016.  Before the [temporary visa] ceased [the applicant] was involved in an accident [in] December 2015.  He was granted a Bridging A visa on 16 February 2016.  He was granted a [different temporary visa] on 29 February 2016.  He subsequently applied for a Class UB Subclass 602 Medical Treatment visa but the visa was refused.  [The applicant] applied to the Tribunal for review of the decision to refuse that visa.  Following hearings in December 2016 and February 2017 the Tribunal (differently constituted) remitted the matter for reconsideration: AAT reference 1610720.  On 21 February 2017 [the applicant] was granted a Medical Treatment visa.  The visa ceased on 30 June 2017. 

8. In the application for the further Medical Treatment visa [the applicant] indicated that he wished to remain in Australia from June to December 2017. 

9. According to the primary decision [the applicant] made his first application for a Medical Treatment visa on the grounds that he had been involved in an accident or suffered a workplace injury.  It appears from the AAT decision record in case number 1610720 that, unbeknown to [the applicant], his representative informed the Department that he was involved in a car accident.  [The applicant] told the Tribunal rather that he was injured at a friend’s place.  His friend was using an angle grinder.  [The applicant] tripped over the electrical cord, pulling the angle grinder towards himself.  He seriously injured his [specified injuries].  He was hospitalised for four days or thereabouts in December 2015.  He was readmitted to hospital for a few days in February 2016 for treatment of a wound infection.  He began consulting a psychologist in or about January 2016.

10. The visa application made on 28 June 2017 lists the following injuries and conditions said to require treatment: [specified injuries and conditions]. 

11. The Department’s file includes letters by [the applicant’s] GP and psychologist that are dated in December 2016.  The GP stated that [the applicant] continued to attend the hospital for treatment.  The psychologist referred among other things to [a condition] and expressed the opinion that [the applicant] could not leave Australia until his health improved.  There are other documents on the Department’s file that apparently refer to medico-legal appointments in connection with a public liability claim.  The latest of those appointments was scheduled for July 2017.    

12. No evidence in support of the application has been submitted to the Tribunal, whether medical or other expert evidence or non-expert evidence. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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. 

15. 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 and meets the requirements of cl.602.212(6).

16. [The applicant] is in Australia.  He has turned [age].  However, there is no claim, and no evidence to support a claim, that [the applicant] has applied for a permanent visa.  There is no claim, and no evidence to support a claim, that he is currently medically unfit to depart Australia.  [The applicant] therefore does not meet the requirements of cl.602.212(6).

17. There is no evidence before the Tribunal that [the applicant] has breached any relevant visa conditions. 

18. The relevant visa conditions that would now be imposed would be 8101 (no work) and 8201 (no study). 

19. It is significant that when he applied for the visa [the applicant] stated that he wished to remain in Australia until the end of 2017. 

20. There is no evidence before the Tribunal that would enable the Tribunal to be satisfied that at present [the applicant] requires medical treatment or that any treatment he may require would not be reasonably available in [Country 1]. 

21. While there is evidence that [the applicant] has a friend in Australia there is also evidence that he has very substantial personal ties to [Country 1] where his wife and [children] are.  There is evidence on the Department’s file to indicate that he owns property in [Country 1].  Further, he told the Tribunal in late 2016 or early 2017 that he operates a [business] in [Country 1].  On the face of it, there matters indicate that his incentive to return to [Country 1] would be outweighed by any incentive to remain in Australia.  On the other hand, [the applicant] has not put forward any evidence to show that he currently intends to comply with relevant visa conditions or that he currently intends to stay temporarily in Australia for the purpose for which the visa is granted.  The fact that he has remained in Australia for so long beyond the time he said in the visa application that he wanted to remain in Australia, and the fact that he has submitted no evidence to indicate even that he is currently receiving any medical or other treatment, casts considerable doubt on the matter.    

22. In summary, there is a lack of evidence to show that [the applicant] now meets the general requirements for a Medical Treatment visa.  But, restricting the review to the issues and criteria on which the delegate’s decision was based[1], the Tribunal is not satisfied on the evidence before it that [the applicant] genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    [1] See President’s Direction entitled Conducting Migration and Refugee Reviews at paragraph 8.2.

23. Based on these findings, the Tribunal concludes that [the applicant] does not meet the requirements for the grant of the visa.

24. The Tribunal must therefore affirm the decision under review.

    DECISION

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

    John Billings
    Senior Member