1801566 (Migration)

[2019] AATA 2124

1801566 (Migration) [2019] AATA 2124 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801566

DIBP REFERENCE(S):  BCC2017/4679776

MEMBER:Linda Holub

DATE:26 March 2019

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 26 March 2019 at 4:25pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – intention to stay permanently – continue working in Australia – adverse migration history– claimed discrimination against Chinese people in Malaysia – no arrangement for medical treatment – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

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 section 378 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 January 2018 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 applied for the visa on 5 December 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 refused to grant the applicant the visa because the delegate found that the applicant is attempting to obtain a Medical Treatment visa to remain in Australia to maintain ongoing residence in Australia, to continue working in Australia, and to access services in Australia.

4. The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

Is the applicant unfit to depart Australia?

1. 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(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.

2. The records of the Department indicate that the applicant was in Australia at the time of application on 5 December 2017 and he confirmed this at hearing.  Accordingly, the Tribunal finds that he satisfies the requirements of cl.602.212(6)(a).  The evidence before the Tribunal indicates that he was born in [year] and therefore he has not turned 50 years of age.  The applicant confirmed his date of birth.  Accordingly, the Tribunal finds that he has not turned 50 years of age therefore he does satisfy the requirements of cl.602.212(6)(b). 

3. As he not satisfy the requirements of cl.602.212(6)(b), she is unable to meet the requirements of cl.602.212(6) in its entirety.

10) There is no suggestion that any of the other alternative sub criteria are relevant in this case.

11) Given the above findings, the requirements in cl.602.212(6) are not met.

12) The applicant is not medically unfit to depart Australia and therefore the requirement at Clause 602.215 applies.

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

13) 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).

14) The applicant stated that he came to Australia because he was subjected to racism and he therefore wants to stay here.  He stated he initially came on a visitor visa and became unlawful and then applied for Protection.  At that time he stated he had work as [an occupation] but has not worked since he lost his work rights.  The applicant gave evidence that he is unmarried and has three older sisters and one older brother in Malaysia.  He has phone contact a couple of times a month with two of his older sisters.

15) The applicant sought the visa for the period 4 December 2017 until 4 December 2018 and indicated on the form that the medical treatment that had been arranged was form ‘left inguinal pain”.  The Form 1507 part of the application also refers to the applicant experiencing left inguinal pain and that he had been provided a referral for “USS abdomen”.

16) The Tribunal asked him why he still needed to be here as several months had passed since the end of the period for which he sought the visa.  He stated that he dare not go back and he needs to stay for medical treatment.  He stated that it would be miserable for him to return to Malaysia because they discriminate against Chinese. 

17) The Tribunal then discussed the applicant’s migration history with him, which is set out in the Department’s Decision Record.  The applicant arrived in Australia on 1 August 2011 on an Electronic Travel Authority (ETA) subclass 976 and he has remained since that time. On 10 April 2012 the applicant was granted a Student visa subclass 572 while he was onshore. It was valid until 19 September 2013.  The applicant remained unlawfully in Australia for almost 2 years following the cessation of that visa. On 7 July 2015 the applicant lodged an application for a Protection visa (XA 866) and was granted and associated bridging visa. The department refused his Protection visa application on 26 September 2016 and that decision was affirmed by the Administrative Appeal Tribunal.  The applicant appealed to the Federal Court and on 9 September 2017 the court found against him. His bridging visa ceased on 24 October 2016 and he remained an unlawful noncitizen again until 28 February 2017 when he was granted a bridging visa valid until 7 December 2017.  The applicant confirmed the history as outlined. 

18) In relation to his protection claims the Tribunal put to him that his claims had been assessed and found not to be valid by the Department and that decision was affirmed by the Tribunal (differently constituted) and he lost his case in the Federal Court.  He acknowledged this was the case.

19) The Tribunal also put to him that he had given evidence that he applied for a Medical Treatment visa to remain in Australia because of the claimed discrimination against Chinese people in Malaysia.  The applicant confirmed this was the case.

20) The applicant stated that he did not have medical treatment because the visa was not granted which means he no longer has work rights and he does not have money to see a doctor.  The Tribunal asked the applicant if he had arranged medical treatment. He stated he had not done so.  This Tribunal again explained to the applicant this visa type requires that you have made arrangements for medical treatment and therefore it appears he does not fit the criterion for the visa.  When asked if he wished to comment he stated that he had surgery and now the condition is coming back.  He confirmed that he had not arranged any treatment.

21) The Tribunal put it to the applicant that as he had previously applied for protection which demonstrates his interest in remaining in Australia.  The applicant responded that he dare not go back because he fears discrimination. The Tribunal asked the applicant about his siblings and their experience.  In response, he referred to a friend who had applied as a refugee and not was approved and was subjected to discrimination when he returned to Malaysia and therefore he dare not go back.  When asked the applicant how this relates to him, he stated he dare not return.

22) The Tribunal put to the applicant that he has at times remained in Australia unlawfully which shows me that he is prepared to flout Australia’s migration law.  The Tribunal is therefore concerned that he may do so again and not leave Australia after the period for the visa should it be granted.  The applicant stated that if it is granted he will have the treatment. The Tribunal asked him how this would resolve the issue of discrimination he had referred to.  He repeated that he dare not go back. 

23) The Tribunal explained to the applicant that having considered the written and oral evidence which did not substantiate that medical treatment had been arranged and given his migration history the Tribunal did not consider that he met the relevant criteria.  He was provided with a opportunity to add anything further.  He stated that he sought  special consideration.

Findings

24) The Tribunal is prepared to accept that the applicant reported inguinal pain to his doctor.  The Tribunal has had regard to the fact that the applicant gave evidence that he has not arranged any medical treatment and that he wishes to remain in Australia for a reason unrelated to medical treatment.  The Tribunal placed significant weight on the applicant’s migration history and is concerned that he will not depart Australia at the end of the visa period.  Therefore, the Tribunal is not satisfied the applicant genuinely intends to stay temporarily for the purpose for which the visa is granted.

25) Given the above findings, cl.602.215 is not met.

26) 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

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

Linda Holub
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).