1921112 (Migration)

[2021] AATA 3824

1921112 (Migration) [2021] AATA 3824 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1921112

MEMBER:Nathan Goetz

DATE:8 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 08 September 2021 at 2:36pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – medically unfit to depart Australia – lengthy migration history – maintaining residence in Australia – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, 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 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. BACKGROUND

3. The applicant identifies as [an age]-year-old male citizen of Malaysia and arrived in Australia [in] August 2016 holding an electronic travel authority visa.

4. On 7 November 2016 the applicant applied for a protection visa. On 9 November 2016 the applicant was granted a bridging visa. The delegate refused to grant this visa on 8 February 2017. The applicant applied to the Tribunal for review of the delegate decision. On 5 February 2018 the Tribunal affirmed the decision to refuse to grant the protection visa.

5. [In] February 2018 the applicant lodged judicial review proceedings in the Federal Circuit Court concerning the Tribunal decision. On 26 February 2018 the bridging visa ceased. On 26 February 2018 the applicant was granted another bridging visa.

6. On 12 July 2019 the applicant applied for the medical treatment visa that is the subject of this decision record. 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). On 15 July 2019 the applicant was granted a bridging visa.

7. On 19 July 2019 the delegate refused to grant the medical treatment visa on the basis that the applicant did not satisfy cl.602.215. On 1 August 2019 the applicant applied to the Tribunal for review of the decision to refuse to grant the medical treatment visa.

8. [In] October 2019 the Federal Circuit Court discontinued the judicial review proceeding. On 19 November 2019 the bridging visa granted on 26 February 2018 ceased.

9. On 23 December 2019 the bridging visa granted on 15 July 2019 ceased. On 23 December 2019 the applicant was granted a bridging visa which remains in effect.

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

11. The first reason was to invite the applicant under s.360 of the Act to appear by telephone at a Tribunal hearing on 30 September 2021. The Tribunal was satisfied that a telephone hearing was appropriate given the COVID-19 pandemic. The Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review because the Tribunal had considered the information it had and was unable to make a decision favourable to the applicant.

12. The second reason was to request under s.359(2) of the Act that the applicant provide the Tribunal with information. The information requested by the Tribunal is listed later in this decision record. The letter noted various administrative matters and advised the applicant that if he did not provide the requested information by 7 September 2021, the Tribunal hearing scheduled for 30 September 2021 would be cancelled and the Tribunal would make a decision in the review application without taking any further steps to allow or enable the applicant to appear at the Tribunal.

13. By 7 September 2021, the applicant had not received any response from the applicant to the request for information. The only response was from the applicant’s (then) migration agent who wrote to the Tribunal and advised that the agent had not been able to get instructions from the applicant. The migration agent asked for an extension to the timeframe for the response to the request for information to be granted.

14. The Tribunal asked the migration agent for more information before deciding whether to grant that extension. The Tribunal asked for a chronology of the attempts to contact the applicant to obtain instructions. To the Tribunal’s way of thinking, if the migration agent had commenced contacting the applicant immediately upon receipt of the hearing invitation on 24 August 2021 without success, then there may be no utility in granting the extension request because it would be unlikely that the applicant would start to respond to attempted contact by the migration agent. After this request, the migration agent filed a change of contact details form signed by the applicant confirming that the migration agent no longer represented the applicant.

15. The purpose for the request for extension was to allow the migration agent to contact the applicant. This evidently occurred because the change of contact form is signed by the applicant. There was no request by the applicant to extend the time for responding to the Tribunal’s request for information.

16. Accordingly, the Tribunal cancelled the Tribunal hearing and proceeded to make a decision.

    CRITER FOR THE VISA

17. 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?

18. 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

19. The applicant wrote that he was seeking the visa for the purpose of medical treatment. He will be undertaking the medical treatment between 12 July 2019 and 12 July 2020. He was asked to provide brief details of his medical treatment and the applicant wrote ‘DUE TO MY CURRENT CIRCUMSTANCES I AM FEELINGSTRESSED, ANXIOUS AND DEPRESSED AND I WILL UNDERGO PSYCHOLOGICAL TREATMENT.’ The treatment was to be provided by [Doctor A].

20. Form 1507 was completed by [Doctor A] and attached to the visa application form. The medical condition requiring treatment was ‘depression and anxiety’ and the treatment was ‘mental health assessment and psychological treatment.’

    Delegate decision record

21. The delegate decision record details the applicant’s history of applying for substantive visas and is repeated in the background of this decision record.

22. Review application

23. Having considered the information provided by the applicant, the Tribunal decided to write to the applicant to obtain more information. The Tribunal adopted the procedure in s.359(2) of the Act when it wrote to the applicant. The Tribunal requested information as follows

    ·     In your medical treatment application form you indicated that you wished to remain in Australia from 12 July 2019 until 19 July 2020, but the records demonstrate that you have remained in Australia since that time. Why have you remained in Australia since 19 July 2020?

    ·     Your migration history demonstrates that you have never left Australia since your initial arrival. Why have you never departed Australia since your initial arrival in Australia?

    ·     In your medical treatment application form you indicated that you were seeking treatment from [a named] Medical Clinic for depression and anxiety. 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 review application form you declare your residential address is ‘[Town 1]’ in Victoria but have not provided your residential address. that your telephone number is [phone number] and that your email address is [email address]. You are directed to provide your complete residential address and confirm if the telephone number and email address remain correct.

24. As noted previously, the applicant did not provide the information requested by the Tribunal.

    FINDINGS AND REASONS

25. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment. If he does, then he satisfies cl.602.215. If he does not, then he does not satisfy cl.602.215.

26. Before determining whether the applicant satisfies cl.602.215, the Tribunal must decide whether the applicant satisfies cl.602.212(6). If the applicant satisfies cl.602.212(6), then he is not required to satisfy cl.602.215.

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

28. The applicant is [age] years of age. He is therefore unable to satisfy cl.602.212(6) and the Tribunal is therefore required to be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment. The Tribunal is not satisfied that this is the case for the following reasons.

29. First, the applicant’s migration history demonstrates a longstanding desire to remain in Australia permanently. The applicant has never departed since his initial arrival in August 2016. The applicant entered Australia on a temporary visa and did not leave. Instead, he lodged a protection visa application which demonstrated his unwillingness to return to his home country. Once proceedings related to that protection visa application were concluded, the applicant remained in Australia.

30. Further, the applicant claimed to require the medical treatment visa to receive medical treatment until 12 July 2020. Again, he remained in Australia passed this time. The applicant provided no explanation as to why he remained in Australia after the time he claimed to need for medical treatment expired.

31. The Tribunal is satisfied that the applicant’s failure to depart Australia, and lodgement of a protection visa, demonstrate that the applicant’s intention is to permanently remain in Australia.

32. Second, the applicant has provided very little evidence concerning his claimed medical condition and treatment. For all the Tribunal knows, the applicant attended on [Doctor A] once, self-reported his symptoms in order to obtain the Form 1507, and was never heard from again. The lack of the type of evidence that it would be reasonable to expect to accompany a medical treatment visa application, such as medical reports detailing the type of information the Tribunal requested in its letter to the applicant, demonstrates to the Tribunal that the applicant does not suffer with any of the claimed medical conditions and has not received any treatment for those conditions. The Tribunal is satisfied that the applicant lodged the medical treatment visas as a way to maintain the residency in Australia that he sought to obtain through a protection visa.

    CONCLUSION

33. 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.

34. Therefore, the applicant does not satisfy cl.602.215 of the Regulations.

    DECISION

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

    Nathan Goetz
    Member