1930833 (Migration) - [2021] AATA 4031

1930833 (Migration) [2021] AATA 4031 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: SZVVI
CASE NUMBER: 1930833

MEMBER:Nathan Goetz
DATE:22 October 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 22 October 2021 at 10:13am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – period of unlawful residence conditions – lengthy stay in Australia – outstanding debt to the Commonwealth – abiding by visa conditions – substantially complying with previous substantive visa – limited medical evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 109, 359, 360
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.217; Schedule 4, Public Interest Criterion 4004
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

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).
The applicant was represented in the review application by registered migration agent [named].
BACKGROUND
At various times, the applicant has identified as [Alias A], a [Country 1] citizen born on [DOB 1], and as [variants of SZVVI], a Chinese citizen born on [DOB 2]. The applicant lodged this review application under the identity of [SZVVI].
[In] July 2006 the applicant arrived in Australia holding an electronic travel authority (visitor) visa under the identity of [Alias A variant], a [Country 1] citizen who was born on [DOB 1]. On 21 October 2006 the visa expired.
On 11 September 2006 the applicant applied for a protection visa under his [Country 1] identity. On 22 November 2006 a delegate refused to grant the protection visa. On 20 December 2006 the applicant applied to the Tribunal to review the protection visa refusal decision. On 15 February 2007 the Tribunal affirmed the decision to refuse to grant the protection visa in RRT case [number].
On 17 September 2009 the applicant applied for a protection visa under his Chinese identity. On 13 January 2010 a delegate refused to grant the protection visa. On 10 February 2010 the applicant applied to the Tribunal to review the protection visa refusal decision. On 22 June 2010 the Tribunal remitted the protection visa application to the department with a direction that the applicant was owed protection obligations in RRT case [number]. The department granted the applicant a protection visa on 10 August 2010.
On 15 October 2013 a delegate commenced the process of cancelling the protection visa under s.109 of the Act. The delegate cancelled the protection visa on 30 May 2014. On 17 June 2014 the applicant applied to the Tribunal to review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 4031
Decision Date: 22 October 2021

CaseChat Overview and Summary

The applicant, who has used multiple identities and nationalities, sought judicial review of the Administrative Appeals Tribunal's decision to affirm the refusal of a Subclass 602 (Medical Treatment) visa. The applicant had a complex migration history in Australia, including previous protection visa applications, a granted protection visa that was subsequently cancelled, and periods of unlawful residence. The applicant also had outstanding debts to the Commonwealth related to previous migration proceedings.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 602 visa, specifically clause 602.215 of the Migration Regulations 1994 (Cth). This clause requires the applicant to genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal was also required to consider whether the applicant had substantially complied with the conditions of their last substantive visa or any subsequent bridging visa, and their intention to comply with the conditions of the proposed Subclass 602 visa, along with any other relevant matters.

The Tribunal found that the applicant did not satisfy clause 602.215. In reaching this conclusion, the Tribunal had regard to the applicant's extensive history of unlawful residence, the cancellation of a previous protection visa, and outstanding debts to the Commonwealth. The Tribunal also noted the limited medical evidence provided, which described Type II diabetes and hypolipidemia requiring lifelong oral medication, and the applicant's failure to respond to a hearing invitation. Given these factors, the Tribunal was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in the review application by registered migration agent [named].BACKGROUND At various times, the applicant has identified as [Alias A], a [Country 1] citizen born on [DOB 1], and as [variants of SZVVI], a Chinese citizen born on [DOB 2]. The applicant lodged this review application under the identity of [SZVVI]. [In] July 2006 the applicant arrived in Australia holding an electronic travel authority (visitor) visa under the identity of [Alias A variant], a [Country 1] citizen who was born on [DOB 1]. On 21 October 2006 the visa expired. On 11 September 2006 the applicant applied for a protection visa under his [Country 1] identity. On 22 November 2006 a delegate refused to grant the protection visa. On 20 December 2006 the applicant applied to the Tribunal to review the protection visa refusal decision. On 15 February 2007 the Tribunal affirmed the decision to refuse to grant the protection visa in RRT case [number]. On 17 September 2009 the applicant applied for a protection visa under his Chinese identity. On 13 January 2010 a delegate refused to grant the protection visa. On 10 February 2010 the applicant applied to the Tribunal to review the protection visa refusal decision. On 22 June 2010 the Tribunal remitted the protection visa application to the department with a direction that the applicant was owed protection obligations in RRT case [number]. The department granted the applicant a protection visa on 10 August 2010. On 15 October 2013 a delegate commenced the process of cancelling the protection visa under s.109 of the Act. The delegate cancelled the protection visa on 30 May 2014. On 17 June 2014 the applicant applied to the Tribunal to review the cancellation decision. On 24 November 2014 the Tribunal affirmed the decision to cancel the protection visa in RRT case [number]. [In] December 2014 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. [In] July 2017 the Federal Circuit Court dismissed the judicial review application in SZVVI v MIBP [2017] FCCA 546. [In] August 2017 the applicant appealed to the Federal Court against the decision of the Federal Circuit Court. [In] July 2019 the Federal Court dismissed the appeal on the basis that it was withdrawn by the applicant. On 24 September 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 24 October 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 30 October 2019 the applicant applied to the Tribunal for review of the refusal decision. On 7 October 2021 the Tribunal wrote to the applicant for three reasons. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 10:00am on 22 October 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant. The invitation included a ‘Response to hearing invitation form’ which the applicant was directed to complete and return to the Tribunal within 7 days. The applicant did not complete and return the ‘Response to hearing invitation’ form.

Evidence

Evidence Before The Court

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 EVIDENCEVisa application form The applicant identified that he was in Australia. He is a citizen of China and holds a Chinese passport which expires [in] 2029. He was born in, Jilin Province. China. He identified that he is married and had been known as [Alias A]. He described this as an ‘assumed identity used to enter Australia and to apply for protection in 2006. The applicant wrote that the purpose of his stay in Australia was medical treatment. His stay in Australia will be self-funded. He will use his personal savings. He indicated that he would be under medical care from 24 September 2019 to 24 September 2020. The details of the medical treatment facility were detailed as [a named] Medical Centre through [Doctor A]. He indicated that he is in contact with his child [SZVVK] who was born on [date] and lives with him at his address in [Suburb 1], New South Wales. Movement record checks disclose no person with that name and address being in Australia. The Tribunal notes that [SZVVK] with that date of birth was included in the applicant’s protection visa application lodged on 11 September 2009, but it was indicated that she was a member of the family unit who was offshore. The applicant disclosed that he previously held a protection visa, visitor visa and various bridging visas. He detailed that he had remained unlawfully in Australia for a period of time, and that his protection visa was cancelled. He noted that two protection visa applications had been refused. He declared that he had outstanding debts to the Minister in relation to the Tribunal, Federal Circuit Court and Federal Court concerning his migration matters. Attached to the visa application was a Form 1507 which [Doctor A] had signed. It detailed the medical condition requiring treatment as Type II diabetes and hypolipidemia. The treatment information was ‘oral medication, likely lifelong, and states can afford PBS medications.’ The applicant attached a [Bank 1] Statement for the transaction period 10 July 2019 to 21 September 2019FINDINGS AND REASONS

Decision

Reasons for decision

Given the above findings, the Tribunal is not satisfied that the applicant meets cl.602.215 of the Regulations. As the Tribunal is not satisfied that the applicant meets cl.602.215, it is unnecessary for the Tribunal to decide if the applicant satisfies cl.602.217(1) of the RegulationsDECISION The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

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