1930951 (Migration)

[2021] AATA 4178

1930951 (Migration) [2021] AATA 4178 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930951

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 12:28pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – periods of unlawful residence conditions – lengthy stay in Australia – outstanding debt to the Commonwealth – abiding by visa conditions – substantially complying with previous substantive visa – application for permanent visa – limited medical evidence – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359, 363
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).

   BACKGROUND

2. The applicant identifies as [age]-year-old male citizen of India.

3. [In] December 2008 the applicant arrived in Australia holding a [Student] visa. This visa was to be valid until 15 March 2011. The applicant departed Australia [in] August 2010 and returned [in] September 2010 during the currency of that visa. On 17 February 2011 the visa was cancelled by a delegate of the Minister. On 28 February 2011 the applicant applied to the Tribunal for review of the cancellation decision. On 14 September 2011 the Tribunal affirmed the decision to cancel the [Student] visa in MRT case 1101859.

4. On 21 December 2011 the applicant applied for a protection visa. On 7 March 2021 a delegate refused to grant the protection visa. On 2 April 2012 the applicant applied to the Tribunal for review of the refusal decision. On 19 June 2012 the Tribunal affirmed the decision to refuse to grant the protection visa in RRT case 1204159.

5. On 26 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 22 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 31 October 2019 the applicant applied to the Tribunal for review of the refusal decision.

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

7. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 2pm on 22 October 2021 so he could give evidence and present arguments in 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. Given the COVID-19 pandemic, current health orders, the applicant residing in Queensland, and the Tribunal member was in Sydney, the Tribunal determined that a telephone hearing was appropriate. Included in the hearing invitation was a ‘Response to hearing invitation form’ which the applicant was directed to complete and return to the Tribunal within 7 days. The Tribunal did not receive a completed form from the applicant.

8. 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 was information that would address the following:

   ·     Immigration records demonstrate that you last arrived in Australia [in] September 2010 holding a [Student] visa which was valid until 15 March 2011, but you have not departed Australia and remained here since that time. Why did you not leave Australia at the conclusion of that visa?

   ·     In your medical treatment visa application form, you declared that the purpose of your stay in Australia was medical treatment and that you would be under medical care from 9 October 2019 to 9 November 2019, but you have remained in Australia. Why have you remained in Australia?

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

   ·     Please provide your current residential address, email address, and telephone number.

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

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

   The client has been to the Refugee Review Tribunal (RRT) and has incurred a debt of $1,540.00 on Customer [Number].

   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.

10. This letter noted that if the applicant did not provide the requested information under s.359(2) of the Act information in writing, or did not comment or respond in writing to the information that would be a reason or part of the reason for affirming the decision under review under s,359A of the Act, then the Tribunal hearing listed on 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.

11. The applicant did not provide the Tribunal with information or comment on or respond to the information that would be a reason of part of the reason for affirming the decision. As a result of this, the Tribunal hearing was cancelled: ss.359(3), 363A of the Act.

    CRITERIA FOR THE VISA

12. 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?

13. 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.

14. 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

15. The form was declared on 28 September 2019, with the applicant indicating he was presently in Australia. The purpose of his stay is for medical treatment. He holds an Indian passport that was expired [in] September 2019. He was born in [his home district in] Nawashahr, Punjab, India.

16. The funding for his stay in Australia is through his own funds. He submitted a bank statement to demonstrate how much money he had in the bank.

17. He would be under medical care in Australia from 9 October 2019 to 9 November 2019. He estimated the costs of his medical treatment to be $1500.00. The medical treatment will be provided by [Doctor A] of [a named health service in] Queensland.

18. He detailed that he previously held a student visa that was cancelled. He did not detail that he had applied for a protection visa that was refused, nor declare that he had outstanding debts to the Commonwealth.

19. The applicant attached Form 1507 which was completed by [Doctor A] on 25 September 2019. The form detailed that the medical condition requiring treatment was ‘adjustment disorder, anxiety / depression’ and that the treatment information was ‘counselling and may need medications.’ A tax invoice was submitted for this consultation.

    Delegate decision record

20. The delegate decision detailed the applicant’s migration history, and noted that during the applicant’s time in Australia, he had been an unlawful non-citizen for 2685 days in total. The decision noted that the applicant currently holds a bridging visa to regularise his migration status in Australia, and the Tribunal understands that this was granted by the delegate when the applicant lodged the medical treatment visa application form, despite the applicant being an unlawful non-citizen from 26 July 2012, when the bridging visa granted in connection with his protection visa application ceased.

    FINDINGS AND REASONS

21. 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.

22. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment. If the Tribunal is satisfied that this is the case, then the applicant will meet cl.602.215 of the Regulations. The Tribunal would then go to consider whether the applicant met cl.602.217(1) of the Regulations.

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

24. Ultimately, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment. The Tribunal comes to this conclusion for the following reasons.

25. First, there is paucity of medical evidence about the applicant’s claimed medical conditions. The Tribunal acknowledges that the Form 1507 was completed by a medical practitioner, but the form is not evidence of a diagnosis of the claimed medical conditions. For all the Tribunal knows, the applicant may have merely self-reported these medical conditions to the medical practitioner. There is no evidential basis for the diagnosis. Given the applicant did not provide an updated medical report as requested, the Tribunal is satisfied that this is the case. Further, there is no evidence that the applicant did have any treatment. There appears to be a recommendation for counselling and potential medication, but no evidence of anything occurring as a result of the applicant’s consultation with the medical practitioner in September 2019. For all the Tribunal knows, the applicant may have attended on the medical practitioner, self-reported his conditions, been told to get counselling, and the applicant was never heard from again. The paucity of medical evidence suggests to the Tribunal that the applicant does not have the medical conditions he claims to have and attended on the doctor only to lend credibility to his medical treatment visa application.

26. Second, the applicant’s migration history demonstrates a determination by him to stay in Australia. He applied for a protection visa which indicates his unwillingness to return to India. When that visa application was unsuccessful and finally determined by the Tribunal in 2012, he did not depart Australia and instead remained here as an unlawful non-citizen. Further, the applicant claimed in his medical treatment visa application form that his treatment would only be until November 2019, yet he has remained in Australia almost two years since that claimed treatment was to cease. All of this demonstrates that the applicant has no intention of ever departing Australia.

27. Combing the paucity of medical documentation concerning the applicant’s claimed medical condition and treatment, with the applicant’s migration history, satisfy the Tribunal that the applicant does not intend to stay temporarily in Australia for the purpose of medical treatment. Instead, this satisfies the Tribunal that the applicant applied for the medical treatment visa only as a basis to main ongoing residency in Australia.

    CONCLUSION

28. Given the above findings, the applicant does not satisfy cl.602.215 of the Regulations. As he does not satisfy this clause, it is unnecessary to consider whether the applicant satisfies cl.602.217(1) of the Regulations.

    DECISION

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

    Nathan Goetz
    Member