1826120 (Migration)

[2020] AATA 4369

1826120 (Migration) [2020] AATA 4369 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826120

MEMBER:Nathan Goetz

DATE:14 October 2020

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 14 October 2020 at 10:27am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – visa and residence history – previous protection visa applications refused and court reviews dismissed – previous medical treatment visa application invalid – debt to commonwealth – no response to tribunal’s invitation to provide current information – not unfit to depart Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 360(2)(c)
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(6), 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 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 is a [Age]-year-old male citizen of China who last arrived in Australia [in] November 2007. The applicant applied for the visa on 26 July 2018. 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. On 21 August 2018 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met cl.602.215. That is to say, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the medical treatment visa would be issued.

4. On 29 September 2020 the Tribunal wrote to the applicant for three reasons.

5. First, the Tribunal invited the applicant to appear at a Tribunal hearing by telephone at 10am on 14 October 2020 to give evidence and present arguments. The hearing invitation requested that the applicant complete and return a ‘Response to hearing invitation form’.

6. Second, the Tribunal invited the applicant to provide further information: s.359(2) of the Act. The invitation was as follows:

   You applied for a Medical Treatment visa on 26 July 2018.

   You indicated in your application that you wished to remain in Australia from 23 July 2018 to 23 July 2020 for the purpose of undergoing medical treatment.

   Your application was refused because you did not meet cl. 602.215. Clause 602.215 requires that an applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

   You are also invited to provide the following information in writing:

   ·            When did the medical treatment you have undertaken end, or when is it due to end?

   ·Noting that you have been in Australia since [November] 2007 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

7. Third, the Tribunal raised with the applicant information that would be a reason or part of the reason for affirming the refusal decision: s.359A of the Act.

   The particulars of the information are:
   Debt to Commonwealth
   Information from the Department of Home Affairs shows that you have a debt of $3606 to the Commonwealth
   This would be a reason, or part of the reason for affirming the decision under review as the criteria in cl. 602.217(1) requires you to meet Public Interest Criteria 4004. This requires that the applicant does not have any outstanding debts to the Commonwealth unless the Minister is satisfied appropriate arrangements have been made.
   The Tribunal may conclude you do not meet the criteria in cl. 602.217(1) and affirm the decision under review.
   You are invited to give comments on or respond to the above information in writing.

8. The Tribunal’s correspondence to the applicant advised him of his statutory rights concerning the request for information and response to information concerning the debt. The Correspondence also advised the applicant that if he did not respond to the request for information and respond to the information concerning the debt by 13 October 2020, he would lose the entitlement to appear at the hearing listed for the following day, and the hearing listed the following day would be cancelled. This would mean that the Tribunal would decide the review application only on the information it had: s.360(2)(c) of the Act.

9. The applicant did not complete and return the ‘Response to hearing invitation’ form, did not provide further information as requested, and did not respond to the information concerning the debt. Accordingly, the Tribunal cancelled the hearing and has proceeded to decide the review application only on the information it has.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 this purpose: cl.602.215.

11. In the visa application form, the applicant declared that he wished to stay in Australia from 23 July 2018 to 23 July 2020. He identified as a person who will undergo medial assessment. He described his medical treatment in Australia and the estimated costs as ‘I will make arrangement for my depression treatment’. He indicated that ‘[Mr A]’ of the ‘[Suburb] Medical Centre’ will be providing the applicant with medical treatment. The applicant will be funding his stay in Australia through his own funds, namely his savings. The applicant provided a completed Form 1507 – Evidence of intended medical treatment (includes consultation). This was signed by [Mr A] who indicated the applicant was requiring treatment for ‘reactive depression’. The ‘treatment information’ was described as ‘regular exercise, relaxation exercise, problem solving skills, and stress management’. Nothing further about the applicant’s claimed medical condition or treatment was provided to the Department or the Tribunal.

12. The applicant provided the Tribunal with the delegate decision. The decision noted the applicant arrived in Australia on a student visa [in] November 2007.

13. On 29 July 2008 the applicant lodged a protection visa application as a dependent applicant. The protection visa was refused on 16 October 2008. The applicant applied for review of the refusal decision with the Federal Court of Australia. [In] July 2009 the Federal Court of Australia dismissed the review. On 8 May 2014 the applicant lodged another application for a protection visa as the main applicant. The application was refused on 6 February 2015. The applicant sought review of the refusal decision with the Federal Court of Australia. [In] November 2017 the Federal Court of Australia dismissed the application. On 23 July 2018 the applicant lodged a medical treatment visa that was deemed invalid. The applicant lodged another medical treatment visa on 23 July 2018, which was refused and is the subject of the current proceedings in the Tribunal. The applicant remains in Australia on a bridging visa.

    FINDINGS AND REASONS

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

    Is the applicant unfit to depart Australia?

15. Clause 602.215 is only applicable if the applicant does not meet cl.602.212.

16. 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.

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

18. There is nothing to suggest that the applicant is in Australia, has turned 50, applied for a permanent visa that appears to have met all the criteria for that visa (other than the health criteria) but has been refused the visa, and is medically unit to depart Australia as evidence in writing by a Medical Officer of the Commonwealth.

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

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

20. 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).

21. The applicant has been in Australia since [November] 2007. He has not left Australia since that time. He has lodged two separate protection visa applications. The lodgement of these applications is indicative that the applicant is unwilling or unable to return to his country of citizenship. The applicant has not provided any documentation such as current medical reports, or any information about his current treatment for his claimed depression. The applicant indicated that he wished to remain in Australia until 23 July 2020 but has remained here since that time. The applicant has not provided any information about why he could not obtain treatment for his claimed depression in his country of citizenship.

22. The Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for medical treatment for his claimed depression. The absence of current evidence about his claimed medical condition is telling. When considered with his migration history, the Tribunal is satisfied that the applicant lodged the medical treatment visa application to remain in Australia for purposes not connected with medical treatment.

23. Given the above findings, cl.602.215 is not met.

    CONCLUSION

24. Given the above findings, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed. It is therefore unnecessary for the Tribunal to determine whether the applicant meets cl.602.217(1).

    DECISION

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

    Nathan Goetz
    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).