1830270 (Migration)

[2020] AATA 5700

1830270 (Migration) [2020] AATA 5700 (21 October 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1830270

MEMBER:  Nathan Goetz

DATE:  21 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 21 October 2020 at 6:28pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – not a genuine temporary entrant – health conditions due to motor vehicle accident – credibility issues – previous visa condition breaches – unlawful status – lived in Australia for 12 years – debt to Commonwealth – treatment can be obtained in South Korea – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359(2), 360, 363A, 417
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215, 602.217(1)

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).

1. The applicant is a female citizen of Korea who last arrived in Australia [in] March 1999. She applied for the visa on 11 September 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).

1. On 3 October 2018 the delegate refused to grant the applicant the visa because  the delegate was no satisfied that the applicant met cl.602.215.

1. On 16 October 2018 the applicant applied to the Tribunal for a review of the refusal decision.

1. On 30 September 2020 the Tribunal wrote to the applicant for three reasons.

1. The first reason was to invite the applicant to appear at a Tribunal hearing on 15 October 2020 at 2pm. The hearing was to be conducted by telephone. The applicant was asked to complete the attached ‘Response to hearing invitation form’ and return it to the Tribunal.

1. The second reason was to invite the applicant to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review: s.359A. The information was that the applicant had a debt to the Commonwealth of $2,200.00. This meant that the applicant would not meet cl.602.217(1). This clause requires the applicant to not have any outstanding debts to the Commonwealth or that the Minister is satisfied that acceptable arrangements have been made regarding this debt.

1. The third reason was to invite the applicant to provide information to the Tribunal: s.359(2). The Tribunal noted to the applicant that the visa application was refused because she did  not meet cl.602.215. She was requested to provide information in writing addressing the following:

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

·Noting that you have been in Australia since [March] 1999, please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

·Are you over the age of 50? If so, have you applied for a permanent visa while in Australia?

·If you have applied for a permanent visa, did you meet all the criteria for the grant of that via other than the public interest criteria related to health?

1. The request for comment or response to the information under s.359A and the request for information under s.359(2) required the applicant to provide the response in writing by 14 October 2020. The letter noted the consequence for failing to do so, namely that  the applicant would lose any entitlement to appear at the Tribunal hearing listed the following day, and the hearing would be cancelled.

1. On 9 October 2020 the Tribunal wrote to the applicant and advised her that the hearing  listed on 15 October 2020 was postponed to 10.30am on 21 October 2020. The hearing continued to be listed as a hearing to be conducted by telephone.

1. On 13 October 2020 the Tribunal received an email from the applicant’s migration agent.  The migration agent wrote that the applicant had withdrawn her instructions. This advice was conveyed by an interpreter. The migration agent noted that a Korean interpreter was  required for the hearing and it appeared no interpreter had been organised. The migration agent suggested that the Tribunal contact the applicant’s daughter and provided this daughter’s contact phone number. The migration agent also informed the Tribunal that this daughter had provided him with a mobile telephone number for the applicant, which he provided in the email. The migration agent said he no longer acted in this matter.

1. On 13 October 2020 the Tribunal responded to this email. The letter noted that the Tribunal was required to continue to send the migration agent correspondence from the Tribunal until the applicant advised otherwise. The letter included the ‘Appointment of Representative’ form which is used by applicants to update the contact details of the applicant and the contact details for recipients of Tribunal correspondence, together with a letter to the applicant advising of the migration agent’s advice to the Tribunal.

1. By 14 October 2020, the Tribunal had not received a response to the information raised under s.359A or a response to the request for information under s.359(2). Accordingly, the Tribunal hearing listed for 21 October 2020 was cancelled. The Tribunal is required to invite an applicant to a hearing unless exceptions apply per s.360(2) of the Act. If those exceptions apply, an applicant is not entitled to appear at a Tribunal hearing: s.360(3) of the Act. The Tribunal does not have the power to allow a person to something that they are not permitted to do: s.363A. The Tribunal has no discretion to hold a Tribunal hearing as the applicant did not respond to the s.359A or s.359(2) invitations within the prescribed timeframe.

1. On 15 October 2020 the applicant sent to the Tribunal via another person (that is to say, not the authorised recipient) a completed ‘Response to hearing invitation form’ and attached two documents.

1. On 16 October 2020 the applicant was notified that the hearing on 21 October 2020 was cancelled and that the Tribunal would consider the review application only on the information it had. This letter was sent to the authorised recipient because the applicant had  not provided the Tribunal with a completed form indicating that she no longer wished  her (former) migration agent to be her authorised recipient. The Tribunal cannot change the applicant’s authorised recipient unless it receives this direction in writing from the applicant.

1. On 21 October 2020 the Tribunal received a telephone call from the person who had sent  the ‘Response to hearing invitation’ form into the Tribunal on 15 October 2020. She advised that the review applicant was waiting at home to speak to the Tribunal and that the previous migration agent had ceased to act. A Tribunal staff officer advised this person that the applicant would need to speak to the Tribunal directly about authorising anyone else to be the applicant’s authorised recipient.

1. Later that day, the applicant telephoned the Tribunal and spoke to the Tribunal officer. The applicant again said that she had been waiting for the Tribunal to call her for the hearing.  She had the person who provided the Tribunal with the ‘Response to hearing invitation’ form assist her to do this. The Tribunal officer told the applicant that the Tribunal hearing had been cancelled but told her that the Tribunal would consider any material provided by the applicant. The Tribunal officer also reminded the applicant to provide her direction in writing about who was authorised to receive correspondence from the Tribunal on her behalf. The Tribunal officer also sent the applicant an ‘Appointment of Representative’ form so the

applicant could affect this change. The Tribunal officer reminded the applicant that the Tribunal would continue to send correspondence to her authorised recipient until the form that changed this detail was completed and returned to the Tribunal.

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.

1. According to the applicant’s medical treatment visa application form, she is onshore and will attend a medical consultation. She will be undertaking medical treatment in Australia from September 2018 to September 2019. The medical treatment will ‘primarily relates to lower back pain’ and ‘pain in right shoulder.’ The applicant wrote that she would be using her own funds for this treatment. This would be provided by her husband who was in South Korea. The applicant wrote that she had overstayed a visa in Australia, and also had outstanding debts to the Australian Government. The form was completed with the assistance of her migration agent.

1. The application form included Form 1507 – Evidence of intended medical treatment. [Dr A] was declared as the medical practitioner who detailed the medical condition requiring treatment as cervical sprain, polyarthralgia and another medical condition that was illegible. The treatment information was medication, physiotherapy, spinal care and psychological care. [Dr A] also included a letter dated 15 August 2018, where it was detailed that the applicant was treated from 18 August 2015 to 7 October 2015 for a cervical sprain, right shoulder contusion and chest contusion following a motor vehicle accident [in] August 2015.

1. There was a report from [Dr B] of [a] Medical Centre dated 16 August 2018. [Dr B] wrote that the applicant had a ‘history of adhevie capsulitis of right shoulder,’ Grade 2 whiplash and ‘depression/anxiety following a MVA in 2015.’ She had ‘extensive counselling sessions with psychologist due to symptoms of post traumatic stress disorder in 2015’. She complains of ‘low mood, anxiety and multiple psychosomatic symptoms (dizziness, sweating headache, bloating, body swelling and low back pain) facing a new stressor in her life.’ [Dr B] also provided a ‘health summary sheet’ detailing the current medication and ‘current active problems’.

1. Included was a report of [a] psychologist. The report was undated. It appeared to be prepared in relation to the applicant’s motor vehicle accident. It noted the applicant had a ‘reduced ability to perform her household’ (the Tribunal assumes the report to read household chores or duties). She has sleeping difficulties, gets dizzy, has  headaches, feelings of nausea, feels uncomfortable, concentration problems, memory problems and is forgetful. She has difficulty coping and gets agitated. She is sensitive over little things. She engages in avoidance behaviour and reduced driving ability and is unable to prepare a lunch box for her husband. She has difficulty breathing and tightness in her chest, pain in her neck and right shoulder. The diagnosis was that the applicant met the criteria for having a ‘mental condition’ with a diagnosis of an adjustment disorder with mixed symptoms of depression and anxiety at severe levels. She has ‘social, financial and psychological issues.’ There is no prognosis. The treatment to improve psychological disturbances and perform daily tasks more effectively are listed as psychoeducation, coping and stress management skills, pain adaption skills, problem solving skills, and cognitive behaviour therapy.

1. The report contains various dates and description of activity. The last date is 1 July 2016, where the report notes the applicant has sleeping difficulties but that it was better than before.  She  has  digestion  problems,  lacks  energy,  low  moods,  unable  to  relax  due to

intrusive thoughts, pain in her shoulders and back, but is having acupuncture therapy and taking herbal medicines which are helpful, difficulties coping, inpatient and lack of tolerance levels, and that her daily functioning is mainly staying at home other than attending medical providers and shopping. She has concentration difficulties and is hardly watching TV and reading materials including the Bible. It notes she is able to drive a vehicle without supervision, so long as it is not too far, and she is doing exercises at home. She is descried as vulnerable and fragile.

1. The migration agent included a cover letter to the Department, attaching the above documentation. The migration agent declared that the period of stay is reasonable. The protracted history that the applicant has demonstrated seeking to remain in Australia ‘should not lead to the extinguishment of the applicant’s claims.’ When the applicant applied to the Tribunal for a review of the refusal decision, the migration agent provided a cover letter. The migration agent wrote that the submissions will be supplemented. ‘A central issue may be that the merit to the factual pattern asserted has been enveloped by the Decision Maker’s concern that the application is a pathway to remain in Australia’. It was submitted that ‘what  is missing in this Decision is a merit assessment of the factual pattern asserted, to which our client is entitled’.

1. On 15 October 2020, the applicant provided the Tribunal with a letter from [a named] Oriental Herbal Medicine and [Acupuncture provider] dated 6 October 2020. The letter stated that the applicant is suffering from lumbar pain and shoulder. She is unfit to work/study from 8 June 2018 to 6 October 2020.

1. The applicant also provided a letter from [Dr A] dated 6 October 2020 which noted that the applicant is suffering from cervical and lumbar spondylitis over two years with  analgesics, spinal care and regular physiotherapy. These conditions require a continuous current management.

1. The applicant also provided a letter from [name deleted] dated 6 October 2020. The letter wrote that the applicant has been attending regular physiotherapy treatments since December 2015. She is experiencing functional imitation with daily activities such as repetitive lifting/carrying, prolonged walking and standing due to fluctuating pain. The opinion of the author is that the applicant’s recovery process of pain on the neck and lower back seem to be slow and require continued physiotherapy treatment. She needs continuous care supports including pain management and physiotherapy exercise to better manage the symptoms and to improve functional capacity in normal daily activities.

1. The applicant’s migration history is detailed in the delegate decision.

1. [In] March 1999, the applicant arrived in Australia holding a tourist visa. On 18 June 1999 she applied for a student visa. This was granted on 16 September 1999. On 25 January 2000 the applicant applied for another student visa. This was refused on 17 April 2000. The applicant sought a review of that decision. On 9 October 2000 the Tribunal remitted that matter to the Department to reconsider. The Department granted this visa on 20 March  2001.

1. On 5 May 2005, the applicant applied for another student visa. She was granted this visa. On 23 April 2002 the applicant applied for an ELICOS sector student visa. This visa was granted on 26 September 2002. On 18 March 2003 the applicant applied for a vocational education sector visa. This visa was granted on 25 March 2003. On 29 May 2003 the applicant applied as a dependent applicant for an Australian sponsored overseas student visa. This was refused on 39 September 2005.

1. On 7 June 2005, the applicant applied for a protection visa. This visa was refused on 4 July 2005. On 16 November 2005 the applicant applied to the Minister to Intervene under s.417.  A decision was made on 15 May 2006 not to refer the matter to the Minister. On 13 June 2006 the applicant again applied under s.417 for Ministerial Intervention. A decision was made on 16 June 2006 not to refer the matter to the Minister.

   On 8 May 2018 the applicant applied for a protection visa. This application was deemed invalid on 10 May 2018. The applicant applied for judicial review of this determination. This matter is currently awaiting a decision from Federal Circuit [Court].

1. On 11 September 2018 the applicant lodged an application for a medical treatment visa which was refused on 3 October 2018. It is this refusal decision which is the subject of the review application being considered by the Tribunal. The applicant remains on a bridging visa to regularise her migration status in Australia while the medical treatment visa application remains outstanding.

1. The delegate decision notes that the applicant has been an unlawful non-citizen in Australia for a total of 12 years and 5 days.

1. 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.

FINDINGS AND REASONS

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

Is the applicant unfit to depart Australia?

1. Clause 602.215 is only required to be met by the applicant in the event that the applicant does not meet cl.602.212, which is extracted in the attachment to this decision. This clause 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.

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

1. The Tribunal accepts that the applicant is in Australia and has turned 50 years of age, but is not satisfied that the applicant has applied for a permanent visa for which she appeared to meet all the criteria other than the health criteria and been refused the visa, nor is there any evidence from a medical officer of the Commonwealth to state that the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or condition.

1. 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?

1. 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.

1. The Tribunal has had regard to the applicant’s migration history in Australia. The Tribunal has also had regard to the fact that the applicant has not departed Australia since her first arrival in Australia in 1999. She has also been unlawful in Australia for a significant period of time, namely just over 12 years. The migration history, and the applicant’s prior period of unlawfulness, demonstrates to the Tribunal that the applicant is determined to remain in Australia. She has ongoing proceedings connected with a protection visa application. Further, the applicant claimed that she needed to be in Australia for medical treatment from September 2018 to September 2019. This period has now passed and the applicant has not departed Australia. The Tribunal is satisfied that the applicant failed to depart Australia at the end of the end of September 2019 demonstrates that the applicant does not intend to ever depart Australia.

1. All of the above demonstrates to the Tribunal that the applicant intends to remain in Australia permanently. The applicant has not put any evidence before the Tribunal to demonstrate an intention to stay temporarily in Australia for medical treatment, despite being asked to do so by the Tribunal in writing. The Tribunal does not accept that the applicant can have a genuine intention to remain temporarily in Australia for the purpose of medical treatment, while at the same time seeking to remain permanently in Australia for protection concerns. The applicant’s intention is demonstrated by her migration history. She is not in Australia for temporary purposes.

1. The Tribunal accepts that the applicant has been injured in a motor vehicle accident. The Tribunal accepts that the applicant has medical concerns associated with that accident  which require ongoing care and management. The applicant has provided the Tribunal with no evidence to suggest that the applicant would not be able to receive adequate medical care in South Korea to assist in her ongoing rehabilitation.

1. When the Tribunal considers all the information it has cumulatively, the Tribunal is satisfied that the applicant is a person who is currently receiving medical treatment in Australia but is not a person who genuinely intends to stay temporarily in Australia for this purpose. She intends to remain in Australia permanently because she claims that she has protection concerns. As evidenced by her failure to depart Australia following the refusal of her protection visa application (or indeed any visa that has been refused), the applicant will not leave Australia. Her intention to remain in Australia permanently in tolerably clear.

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

Debt to the Commonwealth

1. Given that the Tribunal is not satisfied that the applicant meets cl.602.215, it is unnecessary for the Tribunal to proceed and determine whether the applicant would be refused the visa because she did not meet cl.602.617(1).

CONCLUSION

1. 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

1. 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).