1929006 (Migration)

[2021] AATA 5522

1929006 (Migration) [2021] AATA 5522 (2 November 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1929006

MEMBER:  Nathan Goetz

DATE:  2 November 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 02 November 2021 at 1:51pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – 359A and 359(2) invitation – medical treatment requirements – depression and grief – genuine temporary entrant – paucity of medical evidence – Form 1507 – migration history – application for permanent residency – outstanding debts to the Commonwealth – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 359A, 360, 363A

Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215, 602.217, Schedule 4, PIC 4007

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

1. The applicant identifies as a [age]-year-old male citizen of China. [In] March 2008 the applicant arrived in Australia holding a student visa. This visa ceased on 15 March 2010.

1. On 5 September 2012 the applicant applied for a protection visa. On 28 February 2013 a delegate refused to grant the protection visa. On 27 March 2013 the applicant applied to the Tribunal for review of the refusal decision. On 3 October 2014 the Tribunal affirmed the refusal decision in RRT case 1304715.

1. On 22 December 2015 the applicant applied for a medical treatment visa. On 24 December 2015 a delegate refused to grant the visa. On 21 January 2016 the applicant applied to the Tribunal for review of the refusal decision. [In] April 2016 the Tribunal affirmed the refusal decision in MRT case 1600388. On 27 April 2016 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. [In] July 2016 the Federal Circuit Court dismissed the judicial review.

1. On 16 August 2016 the applicant applied for a combined partner visa. On 9 December 2016 a delegate refused to grant the visa. On 22 December 2016 the applicant applied to the Tribunal for review of the refusal decision. [In] April 2018 the Tribunal affirmed the refusal decision in AAT case 1622103. On 9 May 2018 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. [In] March 2019 the Federal Circuit Court dismissed the judicial review. On 21 March 2019 the applicant appealed to the Federal Court against the decision of the Federal Circuit Court. [In] August 2019 the Federal Court dismissed the appeal.

1. On 29 August 2019 the applicant applied for the medical treatment visa. At the time of application, 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 25 September 2019 the delegate refused to grant the medical treatment visa on the basis that the applicant did not satisfy cl.602.215 of the Regulations. On 14 October 2019 the applicant applied to the Tribunal for review of the refusal decision.

1. On 14 October 2021 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 4 November 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because it had considered the information it had and was unable to make a decision favourable to the applicant. The hearing invitation included a document titled ‘response to hearing invitation form’ which the applicant was directed to complete and return to the Tribunal within 7 days. On 25 October 2021 the Tribunal received a completed form signed by the applicant. In the form, he indicated that he did not intend to rely upon any documents at the Tribunal hearing.

1. The second reason was to request under s.359(2) of the Act that the applicant provide the Tribunal with information. The applicant was asked to provide information to address the following:

   ·In your medical treatment visa application, you indicate that the purpose of your stay in Australia was for medical treatment. You wrote that you would be under treatment from 30 August 2019 to 30 August 2020. Immigration records demonstrate that you remained in Australia after 30 August 2020. Why did you not leave Australia?

   ·The Tribunal does not have a current medical report confirming your medical condition(s) and treatment(s). Please provide a current medical report.

   ·Your migration records demonstrate that you arrived in Australia [in] March 2008 holding a schools sector visa, and have never left Australia. Why have you not returned to China?

1. The third reason was to invite the applicant under s.359A of the Act to comment on or respond to information that would be a reason, or part of the reason for affirming the decision under review. The information was the following:

1. Records demonstrated that applicant had the following outstanding debts to the Commonwealth:

   ·A debt to the Commonwealth for litigation: [number] – [the applicant] – DOB – [date],M – has the following outstanding debts to the Commonwealth; Litigation

   – Customer No – [number] - $16,814.32 for Court cases – [case number]] & [case number] & [case number] & [case number]. You will need to contact the Department of Home Affairs by email to [email protected] to obtain an invoice so you can arrange payment for this debt.

   ·A debt to the Commonwealth for a Tribunal review of the decision to refuse the protection visa: $1,540.00 on Customer No – [number]. You will need to contact the finance section of the Tribunal by email to [email protected] or phone [phone] to obtain an invoice so you can arrange payment of this debt.

1. The applicant was advised that information was relevant because cl.602.217 of the Regulations requires him to meet Public Interest Criteria 4004 to be granted a medical treatment visa. This requires that the applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.

1. The Tribunal advised the applicant that as he had the above debts, this would be a reason or part of the reason for affirming the decision under review because he would fail to satisfy cl.602.217 of the Regulations.

1. The letter advised the applicant that if he did not provide information, or did not comment on or respond to information, by 28 October 2021 then the Tribunal hearing scheduled on 4 November 2021 would be cancelled and the Tribunal would make a decision without holding a Tribunal hearing. The Tribunal has no power to hold a Tribunal hearing in these circumstances: ss.360(3), 363A of the Act.

1. The applicant did not provide information, or comment on or respond to information by 28 October 2021. Accordingly, the Tribunal hearing was cancelled, and the Tribunal has made a decision on the review application without holding a Tribunal hearing.

CRITERIA FOR THE MEDICAL TREATMENT VISA

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. 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. 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

Medical treatment visa application form and documents submitted to the delegate

1. The applicant identifies that he is currently in Australia and that the purpose of his stay is medical treatment and consultation. He is a citizen of China and holds a Chinese passport expiring [in] 2027. He was born in Pingtan, Fujian. China and identifies his relationship status as de facto. He identifies this person as [Ms A].

1. The applicant declared that funding for his stay will be self-funded. He will be under medical care in Australia from 30 August 2019 to 30 August 2020. When asked to provide brief details of the applicant’s medical treatment in Australia and its estimated costs, the applican wrote ‘depression and grief.’ The medical treatment will be provided by [specified] Medical Centre through [named medical practitioner].

1. The applicant detailed that he had a protection visa, spouse visa and medical treatment visa refused. He acknowledged that he had overstayed a visa in Australia and that he had outstanding debt to the Australian Government or any public authority in Australia, but wsas unsure of the details.

1. Attached to the visa application form was a completed Form 1507, completed on 22 August 2019 by [named medical practitioner], whose stamp indicates that he is a clinical psychologist. The medical condition requiring treatment was ‘depression and grief.’ The treatment information was ‘cognitive behaviour therapy, positive thinking, relaxation, problem solving skills and sleeping better.’

FINDINGS AND REASONS

1. The issue in this case is whether the applicant meets cl.602.215 of the Regulations. The applicant is required to meet cl.602.215 of the Regulations because he does not satisfy cl.602.212(6) of the Regulations. He does not meet cl.602.212(6) of the Regulations because he has not turned 50 years of age.

1. If the applicant meets cl.602.215 of the Regulations, then the Tribunal will next consider whether the applicant meets cl.602.217 of the Regulations.

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

1. The Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment. The completed Form 1507 does not disclose that the applicant has been diagnosed with his claimed medical conditions. For all the Tribunal knows, the applicant may have attended once on [named medical practitioner] for the purpose of obtaining a completed Form 1507 and self-reported his conditions, without [named medical practitioner] making a diagnosis. There is no evidence of an actual diagnosis being made. Further, there is no suggestion that the applicant engaged in any of the suggested treatment contained in the Form 1507. The Tribunal asked for updated information about this treatment, and none was provided. The Tribunal is satisfied that there is no evidence of treatment because the applicant did not engage in any of the suggested treatment. The Tribunal is satisfied that the applicant did not engage in any treatment because he neither has his claimed medical conditions nor is he staying in Australia for that treatment.

1. The Tribunal is also not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment as his migration history demonstrates a determination to stay permanently in Australia. The applicant arrived in Australia on a student visa, which is a temporary visa. The applicant did not depart Australia at the conclusion of that visa. Instead, the applicant lodged a protection visa which indicates his unwillingness to return to China. When the applicant was unsuccessful in being granted a protection visa (included associated litigation), he still did not depart Australia. He then lodged a combined partner visa, which included a permanent partner visa, indicating the applicant’s strong desire to remain in Australia on a permanent basis. When that visa application was unsuccessful (including associated litigation), he also refused to depart Australia. This indicates that the applicant has a strong desire to remain in Australia.

1. While the Tribunal acknowledges that the applicant has previously lodged a medical treatment visa, that does not demonstrate that he seeks to remain in Australia temporarily for medical treatment. This is demonstrated by the fact that the applicant did not leave Australia when this previous medical treatment visa application was refused. Further, the current medical treatment visa application indicated that the visa applicant would be under medical care in Australia until 30 August 2020, yet he remained in Australia after that date. This shows that the applicant desired to remain in Australia well past the period of his claimed medical treatment.

1. When the Tribunal considers the paucity of medical evidence (which consisted of nothing more than a completed Form 1507 from two years ago) and combined with the applicant’s migration history, the Tribunal is satisfied that the applicant lodged the medical treatment visa as a means to remain in Australia as an alternative to the residency that he sought through a protection visa and spouse visa. The Tribunal is not satisfied that the applicant has his claimed medical conditions or that he seeks to remain temporarily in Australia for medical treatment.

CONCLUSION

1. Given the above findings, the Tribunal is not satisfied that the applicant meets cl.602.215 of the Regulations. Given this, it is unnecessary to determine whether the applicant satisfies cl.602.217 of the Regulations.

DECISION

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

Nathan Goetz Member