1900488 (Migration)

[2021] AATA 1954

1900488 (Migration) [2021] AATA 1954 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900488

MEMBER:Anne Grant

DATE:30 March 2021

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 30 March 2021 at 1:42pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – unfit to depart Australia – genuine intention for temporary visit – course of treatment in Australia – periods of unlawful residence – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 65, 426A
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 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 12 December 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 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant genuinely intended to remain in Australia on a temporary basis.

4. The applicant was invited to appear before the Tribunal on 30 March 2021 to give evidence and present arguments.  He did not attend at the scheduled time or at all on that day, did not make contact with the Tribunal, and has not provided any submissions for the consideration of the Tribunal.   

5. Given the failure of the applicant to appear before the Tribunal, the Tribunal has decided to make a decision pursuant to s.426A of the Migration Act 1958.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is unfit to depart Australia and whether, if there is no evidence that he is, the applicant genuinely intends to remain temporarily in Australia.

   Is the applicant unfit to depart Australia?

8. 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.

9. There is no suggestion that any of the other alternative sub criteria are relevant in this case. The applicant is in Australia but he is aged [age].  There is no evidence that suggests that he is medically unfit to depart Australia and there is no written certification of same by a Medical Officer of the Commonwealth.  The applicant has applied for a permanent protection visa but was found not to be a refugee.  Given the above facts, the requirements in cl 602.212(6) are not met.

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

10. 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.

11. The applicant claims that he wishes to remain in Australia to obtain treatment for constant headaches.  He has provided a form 1507 from [Doctor A] from [a named] Medical Centre which reports that he was suffering from sinusitis and constant headaches, and that the treatment information was “need to check with sinuses by CT Scan.  Referred for CT Sinuses.”  If the applicant had attended the hearing, he would have been asked for up to date information about his health and the treatment outcomes and plans.  On the basis of the medical information before the Tribunal, the applicant has not established that he was or is undergoing a course of treatment in Australia for headaches, nor that there is any reason why the applicant needed to remain in Australia to undertake treatment and could not return to Malaysia and undertake any necessary treatment there.   

12. According to movement records considered by the Tribunal, the applicant first arrived in Australia [in] March 2015 on a three month visitor visa expiring [in] June 2015. He overstayed that visa and was next granted a bridging visa on 18 November 2015 which after extension ceased on 22 March 2017.  After that visa expired he was again granted a bridging visa on 7 April 2017 which continues at the time of the Tribunal’s decision.  The Tribunal has also taken into account that the applicant applied for a protection visa on 17 November 2015 which was refused on 31 March 2016. His appeal against that decision was dismissed by the Federal Circuit Court [in] August 2019.

13. The applicant’s visa application and extension history, including in particular his application for a permanent protection visa, suggests that the applicant in fact wishes and intends to stay permanently in Australia.  If he had attended the hearing the Tribunal would have given him the opportunity to explain his genuine intention.

14. The Tribunal also notes, from the migration history above that the applicant has spent some periods in Australia as an unlawful non-citizen, after overstaying his visas.  This suggests that the applicant has not complied with the terms of all previous visas and indicates that he might not be relied on to comply with the terms of this visa if it were granted, and depart Australia in accordance with the conditions of any visa.  

15. If the applicant had attended the hearing, the Tribunal would have discussed these matters with him and asked him about his intentions to return to Malaysia.  

16. The Tribunal considers, on the basis of the information and evidence before it as discussed above, that the applicant does not intend to remain temporarily in Australia. 

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

18. 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

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

    Anne Grant
    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).