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

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).

2. The applicant was represented in the review application by registered migration agent [named].

   BACKGROUND

3. 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].

4. [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.

5. 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].

6. 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.

7. 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].

8. [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.

9. [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.

10. 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).

11. 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.

12. On 30 October 2019 the applicant applied to the Tribunal for review of the refusal decision.

13. On 7 October 2021 the Tribunal wrote to the applicant for three reasons.

14. 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.

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

    ·Immigration records demonstrate that you arrived in Australia holding an electronic travel authority (visitor) visa [in] July 2006 which was valid until [a day in] October 2006 but you did not leave Australia. The records demonstrate that you have remained in Australia since that time. Why did you not depart Australia in accordance with electronic travel authority visa?

    ·In your medical treatment visa application, you claimed that you would be under medical care in Australia between 24 September 2019 and 24 September 2020. The immigration records demonstrate that you have remained in Australia since that time. Why have you remained in Australia since 24 September 2020?

    ·The Tribunal does not have a current medical report concerning your medical treatment. Please provide a current medical report detailing your medical condition(s), when you were first diagnosed with those conditions(s), what your current medical treatment for those condition(s) involves, and the prognosis of your medical condition(s).

    ·What is your current residential address, telephone number and email address?

16. The request for information was accompanied by various administrative matters, and advised the applicant that if the information was not provided in writing by 21 October 2021, the Tribunal hearing scheduled for 22 October 2021 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: s.360(3) of the Act. The applicant did not provide information as requested in the letter issued pursuant to s.359(2) of the Act.

17. The third reason was to invite 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 that:

    Records show that you have an outstanding debt to the Commonwealth through the
    courts as follows:

    [Reference number] – [SZVVI] – DOB – [DOB 2],M – has the following outstanding
    debts to the Commonwealth;
    - Litigation – Customer No – [Number] - $10,823.61 for Court cases
    [Case numbers].
    Client has made NO payments towards these debts and has NOT applied for a payment plan. In fact, there is has been no contact from this client.

18. The invitation advised that this information is relevant to the review because the outstanding debt to the Commonwealth would be a reason, or part of the reason for affirming the decision under review because cl.600.217(1) of the Migration Regulations 1994 (the Regulations) requires that you satisfy Public Interest Criterion 4004. This requires that you do not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. If you do not satisfy cl.602.217(1) of the Regulations, you cannot be granted the visa. If we rely on this information in making our decision, we may affirm the decision under review.

19. The invitation to comment or respond to information was accompanied by various administrative matters, and advised the applicant that if the applicant did not comment on or respond to the information in writing by 21 October 2021, the Tribunal hearing scheduled for 22 October 2021 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: s.360(3) of the Act. The applicant did not comment on or respond to the information contained in the s.359A letter.

20. As the applicant did not provide information pursuant to s.359(2) of the Act, and did not comment on or respond to information pursuant to s.359A of the Act, the applicant no longer had a right to appear at a Tribunal hearing and the hearing listed for 22 October 2021 was cancelled. The applicant was notified of the cancellation of the hearing by email.

21. The Tribunal notes that at 5:22am on 22 October 2021, the migration agent emailed the Tribunal as follows:

    “We refer to the subject matter and to your email below.

    Unfortunately, we have not received any instructions from our client in relation to the hearing this morning.

    At this stage, we are not in a position to confirm their attendance at the hearing scheduled for 10am this morning.”

22. The Tribunal has proceeded to make a decision on the review application on the information it has.

    CRITERIA FOR THE VISA

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

24. 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

25. 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.

26. 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.

27. 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.

28. 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.’

29. The applicant attached a [Bank 1] Statement for the transaction period 10 July 2019 to 21 September 2019

    FINDINGS AND REASONS

30. In the present case, the visa applicant seeks the visa for the purposes of medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

31. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.602.215 of the Regulations. The applicant is required to satisfy this clause because he has not turned 50 years of age to enliven cl.602.212(6) which, if enlivened, meant that he was not required to satisfy cl.602.215 of the Regulations.

32. If the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia, then the next issue the Tribunal will consider is whether the applicant meets cl.602.217(1) which requires him to not have a debt to the Commonwealth or that the Minister (that is, Tribunal) is satisfied that appropriate arrangements have been made for the payment of that debt.

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

34. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507. The Tribunal acknowledges that this form has been completed by a medical practitioner. However, that form does not disclose how the applicant came to be diagnosed with those claimed medical conditions. For all the Tribunal knows, the medical practitioner may have been advised by the applicant through self-reporting that he had those conditions and that he was currently taking oral medication for it. It may also be possible that the applicant went to the medical practitioner and told him about those conditions, and the medical practitioner suggested that the applicant take oral medication. The state of the medical evidence is poor. Given that the Tribunal wrote to the applicant and asked for information about his medical conditions and treatment, and received no response, the Tribunal suspects that the applicant attended once on the medical practitioner as evidenced by the completed Form 1507, and never been heard from again.

35. The Tribunal is satisfied that the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) demonstrate that the applicant did not apply for the visa for medical treatment but did so to maintain ongoing residency in Australia.

36. The Tribunal is satisfied that the applicant is not bona fides in claiming to stay in Australia temporarily for the purpose of medical treatment as demonstrated by his migration history. The applicant arrived in Australia in 2006 and has not left. He has lodged a protection visa application and having been refused a protection visa, took the extraordinary step of applying for another protection visa under another identity. That second protection visa was granted and ultimately cancelled. The applicant did not leave Australia. He commenced action in the courts concerning that decision and did not leave Australia when that action was unsuccessful. He did not leave Australia after September 2020 which, according to his medical treatment visa application, was the end date that he would be under care in Australia. The applicant’s migration history demonstrates a determination not to leave Australia.

37. The Tribunal is satisfied when it considers all the information it has as detailed in this decision record that the applicant lodged a medical treatment visa in an attempt to achieve the permanent residency he hoped to achieve through a protection visa. The Tribunal is not satisfied that the applicant has his claimed medical conditions and wishes to stay temporarily in Australia for their treatment.

38. 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 Regulations

    DECISION

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

    Nathan Goetz
    Member