1915075 (Migration)

[2021] AATA 3306

1915075 (Migration) [2021] AATA 3306 (11 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1915075

MEMBER:Luke Hardy

DATE:11 August 2021

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 11 August 2021 at 1:18pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – lengthy stay in Australian citizen – multiple visa applications and judicial appeals – genuine temporary entrant – applicant failed to attend hearing – no evidence of medical treatment sought – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 362, 379, 395

Migration Regulations 1994, Schedule 2, cls 602.211, 602.212, 600.215

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 3 June 2019 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 May 2019. 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 applicant arrived in Australia [in] February 2007 as the holder of a [Student] visa and has not departed since.

4. On 5 May 2008, the applicant lodged a Permanent Protection (class XA) visa. That visa was refused on 3 June 2008. The applicant sought a review of the decision in the Refugee Review Tribunal on 5 June 2008 but the decision was affirmed [in] August 2008. The applicant sought judicial review in the Federal Court [in] October 2008. The Minister withdrew and the application was remitted to the RRT on 9 December 2012. The RRT affirmed the decision on 18 March 2009.

5. On 22 April 2014, the applicant lodged a fresh Protection visa application. That application was refused on 5 December 2014. The applicant sought a review of that decision in the RRT on 4 January 2015. The RRT merged into the AAT on 1 July 2015. The AAT affirmed the decision on the new application on 1 June 2016. The applicant then sought a judicial review of that decision in the Federal Court [in] June 2016. The applicant’s appeal was dismissed [in] June 2018. The applicant then sought further judicial review in the Full Federal Court [in] August 2018, also without success. The applicant then sought leave to appeal to the High Court [in] November 2018 but this petition was recorded as not having been granted [in] March 2019. The applicant had by this stage exhausted all avenues of review of his Protection visa applications.

6. At the time he applied for a Subclass 602 (Medical Treatment) visa, on 10 May 2019, the applicant did not hold a valid visa; he had been an unlawful non-citizen for 4 years and 107 days.

7. The applicant sought a Subclass 602 (Medical Treatment) visa for the period 10 May 2019 to 10 May 2020 to allow him to seek medical attention for “anxiety and depression.” He submitted the requisite Form 1507, signed by a medical professional. There is no evidence before the Tribunal to suggest that the applicant ever commenced the treatment purportedly sought.

8. The delegate refused to grant the applicant the visa because the applicant’s migration history led the delegate to find that the applicant did not intend to remain only temporarily in Australia. The delegate also found that the documentation provided in support of the application did not suggest that the applicant was gravely ill or receiving intensive or critical care, and did not state that he needed to remain in Australia for ongoing consultation. The delegate was not satisfied that the treatment the applicant was seeking was unavailable outside of Australia.

9. The applicant sought review of the delegate’s decision and the matter was constituted to me. For the purposes of the review, he submitted a copy of the delegate’s decision.

10. On 20 July 2021, the Tribunal wrote to the applicant advising him that it had considered all the material it had before it relating to his application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 10 August 2021. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal might make a decision on the case without further notice.

11. The hearing was to be held during a lockdown in Sydney due to the outbreak of the Delta variant of the COVID-19 virus. I exercised the discretion to hold a virtual hearing by telephone, determining that it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, mindful of the delay to resolving the matter if the hearing were not to be conducted by telephone.

12. On July 2021, the applicant responded to the Tribunal’s hearing invitation, advising that he would attend the telephone hearing. The Tribunal also sent the applicant SMS reminders of 5 business days and one business day before the scheduled hearing. Both of these calls evidently reached the number provided by the applicant.

13. Although the applicant had advised the Tribunal that he wanted to give oral evidence, he did not pick up the Tribunal’s telephone call to set up the hearing prior to the scheduled time. The Tribunal’s call went through to a voicemailbox. This happened again when the Tribunal attempted to call the applicant after fifteen minutes and then after a further fifteen minutes.

14. Essentially, this means that the applicant failed to appear before the Tribunal on the day and at the scheduled time of the hearing. Having reviewed the Tribunal file, I am satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5) of the Act, in that the invitation and two SMS reminders were all received by the applicant.

15. The applicant, who is evidently capable of contacting the Tribunal, has not sought a postponement for any reason. He has not provided any argument as to why this matter should be dealt with, say, on the basis of written questions and answers. Although s.395 of the Act provides for the Tribunal to seek information from the applicant in writing, I needed him to take the opportunity offered to him to give oral evidence. This is not a matter that I consider appropriate to pursue by way of a questionnaire. I needed the applicant to answer questions, including potential supplementary ones, in real time.

16. In these circumstances, and pursuant to s 362B of the Act, I have decided to make a decision on this review without taking any further action to enable the applicant to appear before the Tribunal.

17. For the following reasons, I have decided that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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 602.211.

    Is the visit for medical or related purposes?

19. Clause 602.211 requires that the visa applicant seeks to visit Australia, or remain in Australia only temporarily, for the purposes of medical treatment or for related purposes.

20. I needed to ask the applicant if he had undertaken the medical treatment he originally indicated he was seeking. I needed to ask him why he could not pursue such treatment in his own country. I needed to ask him to explain up to what point or stage his medical treatment had progressed, if undertaken at all.

21. I needed to ask the applicant to explain in detail why he still requires a Subclass 602 (Medical Treatment) visa, not least in view of the evident projection in his visa application that the treatment purportedly sought would end by 10 May 2020, which was well more than a year ago.

22. Without more from the applicant than the bare items of information lodged with his original May 2019 visa application, I am unable to be satisfied that he meets the requirements in cl 602.211.

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

23. 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.

24. Given the lack of sufficient information to make a positive decision in this matter, the requirements in cl 602.212 are not met and, accordingly, it must follow that the applicant cannot meet cl 602.215.

25. On the scant evidence provided, and without the applicant having taken the opportunity to give oral evidence in this matter, I am unable to find that he meets the requirements for the grant of the visa. The decision under review must be affirmed.

    DECISION

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

    Luke Hardy
    Member