1726951 (Migration)

1726951 (Migration) [2019] AATA 2782 (7 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1726951
MEMBER:Justine Clarke
DATE:7 May 2019
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 07 May 2019 at 4:13pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – postponement request granted – unfit to depart – has not applied for permanent visa – genuine temporary entrant – medically unfit to travel by aeroplane – specialist medical report not provided – no evidence medication or treatment not available in China – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 17 October 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
On 6 October 2017, the applicant—a [age] year old national of China—applied for the visa.
At the time of application, 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). The primary criteria include cl.602.215, which is a criterion that must be met at the time of decision. Clause 602.215 is set out in full in the primary decision.
The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the applicant the visa because the applicant did not meet cl.602.215. The delegate referred to the applicant’s movement records which indicate that the applicant has resided in Australia since their arrival in December 2014 on a Visitor visa and had only spent nine days offshore. Further, the delegate found that the applicant had provided no evidence that she must remain in Australia for medications or consultations; no evidence that the treatment is unavailable in China; no evidence that she was unfit to travel; and no evidence that there were compelling or exceptional circumstances that warrant her staying in Australia. The delegate expressed the view that the applicant was seeking the visa as a pathway to remain in Australia, where she and her husband appear to have made their home, stating that ‘[t]he applicant’s immigration records and actions are clear indicators that they wish to reside in Australia permanently’.
On 2 November 2017, the applicant applied to the Tribunal for review of the primary decision.
On 12 December 2018, the Tribunal invited the applicant to a hearing on 9 January 2019. The response to this hearing invitation stated that the applicant’s treating specialist doctor was in the process of preparing an updated medical report. The representative foreshadowed that, if the report was not ready in time, the applicant would request that the hearing be postponed so that current evidence of the applicant’s condition could be provided.
On 21 December 2018, the representative sought the postponement of the hearing by 30 days so that all relevant and up to date medical evidence could be provided to the Tribunal prior to the hearing.
That same day, on 21 December 2018, the Tribunal granted the postponement request and informed the applicant, by way of her representative, in writing.
Subsequently, the applicant provided various documents in support of her case, including:
·    written submissions;
·    a letter from [Dr A], neurologist, to [Dr B], dated 13 April 2016;
·    a letter from [Dr A] to [Dr B], dated 15 July 2016;
·    a letter from [Dr A] to ‘Marcel’ dated 24 October 2016;
·    a ‘to whom it may concern’ letter from [Dr A], dated 23 January 2017;
·    a ‘to whom it may concern’ letter from [Dr A], dated 20 December 2017;
·    the applicant’s prescriptions prescribed by [Dr A] on 20 March 2019; and
·    a ‘to whom it may concern’ letter from [Dr C] of [a] Medical Clinic in [Suburb 1] stating simply that the applicant was ‘unfit for travel due to her medical condition’.
On 8 April 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, [Mr D], and from the applicant’s husband, [Mr E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent and the representative attended the hearing.
On 9 April 2019, the representative submitted an email confirmation for the applicant to attend [Dr F] on 16 April 2019.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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 meets cl.602.215.
In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files as well as the oral evidence given at the hearing. The Tribunal acknowledges that the applicant reported feeling unwell at the hearing. The Tribunal asked her if she was willing to proceed with the hearing and she said that she was.
Is the applicant unfit to depart Australia?
Clause 602.215(2) provides that cl.602.215(1) does not apply if the requirements in cl.602.212(6) are met in relation to the applicant.
Clause 602.212 is extracted in the attachment to this decision. Clause 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.
At the hearing, the applicant gave oral evidence in person as to her date of birth and age. She stated that she was [age] or [age] years of age but the date of birth given means she is [age]. The Tribunal is satisfied that she is in Australia and has turned 50 years of age. However, the Tribunal is not satisfied that she meets the other requirements listed above.
At the hearing, the Tribunal asked the applicant if she had applied for a permanent visa in Australia. She replied that she was not sure. Her son shook his head in the negative and then the applicant replied ‘no’. There is no evidence before the Tribunal that the applicant 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.
There is also no evidence before the Tribunal 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.
Given the above findings, the requirements in cl.602.212(6) are not met. Accordingly, in order to be granted the visa, the applicant must meet cl.602.215(1).
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
Clause 602.215(1) requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The written submissions state that the applicant has been diagnosed with Vestibular Migraine and outline her history of chronic recurrent intermittent vertigo, including details of the medications she has been prescribed in Australia and of an acute attack which saw her attend the emergency department of a hospital in Melbourne on 5 March 2016. It was submitted:
As she suffers sudden attacks of vertigo, she is afraid of taking a long flight back to China unless the condition is under control. Presently, she is under review by the Neurologist, [Dr A], and her medication is still being monitored.
When she first encountered this condition in China about 10 years ago, she managed to get an appointment with a specialist in a military hospital through her husband’s connections. She was prescribed a certain medication at that time but as it was a military hospital she could not obtain the prescription on a regular basis.
After the incident on 5 March 2016, she was referred to the Neurologist, [Dr A], by the hospital, who diagnosed her condition and prescribed a medication which he is still adjusting to date.
The Review Applicant’s intention is to continue with the medication in Australia and be monitored by [Dr A] until the medication and dosage are finalised. Thereafter, she would return to China, and hope to be able to make regular trips to Australia to continue being under [Dr A]’s care and monitoring.
… Her intention is not to reside in Australia, but to continue her monitoring by [Dr A].
The Tribunal must have regard to the factors set out in cl.602.215(1)(a)–(c) when assessing whether the applicant has a genuine intention to stay temporarily for medical treatment or related purposes.
Clause 602.215(1)(a)
The Tribunal must consider 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: cl.602.215(1)(a).
At the hearing, the Tribunal asked the applicant whether, to her knowledge, she has complied with all visas that she has held for Australia. She replied that she did not know as her visa application had been handled by her son but she said that she thought that she had complied.
There is no clear evidence before the Tribunal about whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by her was subject. Accordingly, the Tribunal makes no findings with respect to previous compliance with immigration conditions.
Clause 602.215(1)(b)
The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 602 visa would be subject: cl.602.215(1)(b).
When asked, the applicant said that she would comply with the following conditions:
·Condition 8101 – must not work in Australia;
·Condition 8201 – must not engage in study or training in Australia for more than three months; and
·Condition 8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia.
There is no evidence before the Tribunal to cause it to question the applicant’s evidence in this regard. For example, the applicant told the Tribunal that she was retired, having previously worked in a [specified] role in a company, and she thought that she had been retired for about 10 years. Accordingly, the Tribunal accepts the applicant’s evidence that she would comply with conditions to which the Subclass 602 visa would be subject. This is a factor which would weigh in favour of the grant of the visa.
Clause 602.215(1)(c)
The Tribunal must also consider any other relevant matter: cl.602.215(1)(c).
The delegate did not raise country information as a concern in the primary decision and this matter was not discussed with the applicant. It does not form a reason or a part of the reason for affirming the decision under review.
The applicant gave oral evidence that she had come to Australia in 2013 and in 2014 for the purpose of visiting her son. She said that, later on, she became ill. She said that she had stayed on in Australia for medical reasons. The applicant said that she really wants to go back to China but that she cannot be on an aeroplane because of her condition. She gave a general description of how she feels as a result of her condition. She said that she felt that the medication she has been prescribed has helped her a lot. She said that she would like to change her doctor. When asked whether she had taken any steps to see another doctor, she said that she was unsure. She told the Tribunal that after she has received medical treatment, she will return to China. She acknowledged that she had received treatment for the condition in China.
Both [applicant’s husband and son] also gave oral evidence about the applicant’s medical condition and stated that she could not return to China on an aeroplane because of the condition. The applicant’s son gave particularly detailed evidence.
The Tribunal notes that the applicant requested the postponement of the hearing on the basis that her treating specialist doctor was in the process of preparing an updated medical report. However, no such report was submitted and, as noted above, at the hearing, the applicant said that she wanted to find another doctor. These circumstances lead the Tribunal to question whether the applicant’s treating doctor had prepared a report that was unfavourable to the applicant’s case.
The applicant provided evidence that she had an appointment with [Dr F] on 16 April 2019 but as at the date of this decision—three weeks after that date—the applicant has provided no evidence from [Dr F].
While there is current evidence that the applicant is being prescribed medications, there is no strong evidence before the Tribunal that the applicant’s medical condition is such that she must remain in Australia for medications or consultations. [Dr C]’s ‘to whom it may concern’ letter gives no detail about the applicant’s medical condition at all or why it causes the applicant, in that doctor’s opinion, to be unfit for travel. There is also no evidence to corroborate the applicant and her family’s claims that her medications are unavailable in China nor any evidence that she could not seek treatment from a specialist doctor in China.
The applicant told the Tribunal that her son and her husband were her only family members in Australia and that the balance of her family—being her parents and two sisters and one brother—reside in China. While the applicant’s family ties in China provide some incentive for her to return, the Tribunal considers that the presence of her son provides a very strong incentive for her to remain in Australia rather than return to China.
The applicant’s financial situation also does not constitute a strong incentive for her to return to China. The applicant told the Tribunal that she has access to her retirement fund in China and that she could also borrow money from her sister in China if required.
After considering all the evidence before it, on balance the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia for the purpose for which the visa is granted.
The Tribunal finds that the requirements of cl.602.215 are not met. Accordingly, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Justine Clarke
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).

[2019] AATA 2782

7 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice