1919496 (Migration)

[2021] AATA 4484

1919496 (Migration) [2021] AATA 4484 (15 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919496

MEMBER:Nathan Goetz

DATE:15 September 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 15 September 2021 at 11:44am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine intention to stay temporarily for purpose of visa – visa history – long stay and period as unlawful non-citizen – visa refusals affirmed by tribunal and court – remained after period of treatment for which visa sought – no evidence of current condition and treatment provided and no entitlement to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 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 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant identifies as a [age]-year-old female citizen of Malaysia. She arrived in Australia [in] August 2012 holding an electronic travel authority (visitor).

3. On 11 December 2012 the applicant applied for a student visa. On 8 January 2013 a delegate refused to grant this visa. On 29 January 2013 the applicant applied to the Tribunal to review the refusal decision.

4. On 27 September 2013 the Tribunal affirmed the decision to refuse to grant the student visa.

5. On 30 December 2014 the applicant applied for a protection visa. On 2 September 2015 a delegate refused to grant this visa. On 23 September 2015 the applicant applied to the Tribunal to review the refusal decision.

6. On 20 February 2017 the Tribunal affirmed the decision to refuse to grant the protection visa. On 7 March 2017 the applicant lodged judicial review of the Tribunal decision with the Federal Circuit Court. [In] July 2018 the Federal Circuit Court dismissed the judicial review.

7. On 21 June 2019 the applicant applied for the medical treatment visa that is the subject of the review application. At the time he applied for the visa, 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).

8. On 11 July 2019 the delegate refused to grant the visa on the basis that the applicant did not satisfy 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.

9. On 18 July 2019 the applicant applied to the Tribunal for review of the refusal decision.

10. On 24 August 2021 the Tribunal wrote to the applicant for two reasons.

11. First, the Tribunal had considered the information it had and was unable to make a decision favourable to the applicant. Accordingly, the Tribunal was required to invite the applicant under s.360 of the Act to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal hearing was scheduled for 2:00pm on 27 September 2021 and was to be conducted by audio link via MS Teams. The Tribunal was satisfied that this mode of hearing was appropriate given the COVID-19 pandemic.

12. Second, the Tribunal wrote to the applicant and requested informant pursuant to s.359(2) of the Act. The letter advised the applicant that if she did not provide this information by 7 September 2021 then the Tribunal hearing would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal.

13. On 7 September 2021 the applicant’s (then) registered migration agent advised the Tribunal that the migration agent no longer represented the applicant. A change of contact information form was submitted to the Tribunal and was signed by the applicant. The same day, the Tribunal received a request from the applicant as follows:

    Dear Sir/Madam

    I suppose to have the “Invitation to provide Information” submitted to AAT on the 07-09-2021.

    I do sincerely apologise for not be able to meet the date line for submission due to COVID-19 restrictions, lockdowns and isolations, which will possibly end on 23 September 2021.

    Since receiving “Invitation to provide Information” on the 25th August 2021, I have been staying at home and have received no prompt assistance for lodgement.

    I do request a grace of a couple of weeks in extension, though the restrictions and lockdowns may not be over by then, I will try my utmost to have all necessary informations submitted by due date.

    I sincerely the request of extension will be granted because it is VERY IMPORTANT to me.

    Sorry for all the inconveniences.

14. The Tribunal wrote to the applicant on 8 September 2021 and granted an extension to provide this information. The extension was granted to 14 September 2021. The Tribunal did not think it appropriate to extend time for longer than that period for a couple of reasons.

15. First, the applicant applied for the medical treatment two and a half years ago, and it is reasonable to expect that the applicant would have easy access to documentary evidence to corroborate the claimed medical treatment. The extension of time meant that the applicant had three weeks from the initial request to the due date to provide the requested information.

16. Second the applicant could apply for a further extension if he could not provide the information before that time.

17. By 15 September 2021, the applicant had not provided information pursuant to s.359(2) of the Act. Accordingly, the Tribunal cancelled the Tribunal hearing listed on 27 September 2021 and proceeded to make a decision on the review application on the information it had without allowing or enabling the applicant to appear at the Tribunal: s.360(3) of the Act.

18. The Tribunal cannot hold a Tribunal hearing in circumstances where the applicant has not responded to a letter issued for the purposes of s.359(2) of the Act. The Tribunal does not have power to permit a person to do something he or she is not entitled to do: s.363A of the Act.

    CRITERIA FOR THE VISA

19. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

    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) which requires that an 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Visa application form

21. The applicant claimed that she wished to remain in Australia from 21 June 2019 until 21 June 2020 for medical treatment. She wrote that she was seeking treatment from [Dr A] of [Medical Clinic] for anxiety attacks and fear of returning to Malaysia, with a possible diagnosis of post-traumatic stress disorder.

    Delegate decision

22. The decision makes it clear that the applicant has not departed Australia since her arrival on 23 August 2012. During that time, the applicant has been an unlawful non-citizen for 720 days. The decision refers to the applicant breaching visa conditions and not contacting the department to resolve or regularise her migration status.

23. Regrettably, the decision does not particularise the claimed breaches of visa conditions or reconcile how it was claimed that the applicant did not attempt to resolve or regularise her migration status when she had lodged further visa applications and had been granted bridging visas.

    Review application

24. As noted previously, the Tribunal wrote to the applicant under s.359(2) of the Act and requested information. The Tribunal asked for the following:

    ·     In your medical treatment application form you indicated that you wished to remain in Australia from 21 June 2019 until 21 June 2020, but the records demonstrate that you have remained in Australia since that time. Why have you remained in Australia since 21 June 2020?

    ·     In your medical treatment application form you indicated that you were seeking treatment from [Dr A] of [Medical Clinic] for anxiety attacks and fear of returning to Malaysia, with a possible diagnosis of post-traumatic stress disorder. You are requested to provide the Tribunal with a medical report detailing all of your treatment, when that treatment commenced, your medical diagnosis, the basis of any diagnosis and prognosis of your medical conditions.

    ·     In your medical treatment application form you did not provide a copy of your Malaysian passport. You are directed to provide the Tribunal with a valid Malaysian passport or explain why you have not obtained a valid Malaysian passport.

    ·     In your review application form you declare your residential address is [address], that your telephone number is [telephone number] and that your email address is . Your representative subsequently advised the Tribunal that your email address is [email address]. You are directed to confirm that you residential address, telephone number and email address remain correct.

    FINDINGS AND REASONS

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

    Is the applicant unfit to depart Australia?

26. The Tribunal is not satisfied that the applicant is unfit to depart Australia for the purpose of cl.602.212(6) because the applicant has not turned 50 years of age. Consequently, the applicant is required to satisfy cl.602.215.

    Does the applicant genuinely intend to stay temporarily in Australia for medical treatment?

27. The Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment as required by cl.602.215.

28. The applicant’s migration history demonstrates that since the applicant arrived in Australia on 23 August 2012 she has not left. She applied for a student visa which was unsuccessful. She did not depart Australia when that visa was refused. The applicant applied for a protection visa, which demonstrates her unwillingness to depart Australia and return to Malaysia. Even after the applicant’s court proceedings were finalised in July 2018 against her favour, she did not leave Australia. About 12 months later, the applicant then lodged the medical treatment visa.

29. The migration history of the applicant in Australia satisfies the Tribunal that the applicant desires to remain in Australia and will lodge any visa she can, in an attempt to remain here. The Tribunal is satisfied that is what the applicant has done by lodging the medical treatment visa.

30. Further, the evidence concerning the applicant’s claimed medical condition is severely lacking. The applicant has provided nothing other than a Form 1507 completed in July 2019 by [Dr A]. That form does not indicate how the applicant was diagnosed with his claimed medical conditions. For all the Tribunal knows, this diagnosis (if it was a diagnosis) could have come from self-reporting, and the applicant may have fabricated those claim conditions in order to be granted the medical treatment visa. The fact that the treatment was described as referral for psychiatry review and treatment, but there is no evidence that the applicant ever engaged in this treatment, also calls into question whether the applicant sought the visa for medical treatment. If that was the purpose of the visa, then there would have been evidence provided to demonstrate that the applicant had engaged in that treatment. For all the Tribunal knows, the applicant saw [Dr A] in July 2019 to get the Form 1507 completed, receive a referral as described in the form, and was never heard from again.

31. The fact that the applicant did not provide the information requested by the Tribunal, when coupled with the above concerns, satisfies the Tribunal that the applicant lodged the student visa in the hope that this would eventually lead to permanent residency in Australia, and when this failed, he lodged a protection visa in order to achieve permanent residency. When this failed, the applicant lodged a medical treatment visas as an alternative to maintain residency in Australia. The Tribunal is not satisfied that the applicant has an intention to ever leave Australia.

32. For the reasons given above, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment.

33. Therefore, the applicant does not satisfy cl.602.215.

    CONCLUSION

34. The Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment. Therefore, the applicant does not satisfy cl.602.215.

    DECISION

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

    Nathan Goetz
    Member