1931162 (Migration)

[2021] AATA 5586

1931162 (Migration) [2021] AATA 5586 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1931162

MEMBER:Nathan Goetz

DATE:8 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 08 November 2021 at 9:10am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – genuine temporary entrant – 359A and 359(2) invitation – Hepatitis B – poor medical evidence – migration history – intention to remain in Australia permanently – 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 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 China. [In] August 2009 the applicant arrived in Australia holding a student visa which was valid until 15 March 2010.  The applicant departed Australia [in] June 2009 and returned to Australia [in] August 2009 during the currency of that visa.

3. On 15 March 2010 the applicant applied for another student visa. That visa was granted on 7 June 2010 and was valid until 7 July 2010.

4. On 30 December 2010 the applicant applied for a protection visa. On 2 March 2011 a delegate refused to grant the protection visa. On 24 March 2011 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. On 14 June 2011 the Tribunal affirmed the decision to refuse to grant the applicant the protection visa in RRT case 1102695. On 17 August 2017 the applicant again applied to the Tribunal for review of the decision to refuse to grant the protection visa. [In] September 2017 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision dated 14 June 2011. On 14 September 2017 the Tribunal determined the review application finding that it had no jurisdiction to review the decision to refuse to grant the applicant the protection visa in AAT case 1718326. [In] September 2018 the Federal Circuit Court dismissed the judicial review.

5. On 4 October 2018 the applicant applied for a protection visa. On 5 October 2018 a delegate determined that this protection visa application was invalid. [In] October 2018 the applicant applied to the Federal Circuit for review of the determination that the protection visa application was invalid. [In] February 2019 the Federal Circuit Court dismissed the application in [case citation]. On 15 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 in [case citation].

6. On 20 September 2019 the applicant applied for the medical treatment visa that is the subject of this decision record. At the time he applied for the medical treatment visa, 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 14 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. the applicant applied to the Tribunal for review of the decision to refuse to grant him the medical treatment visa. On 2 November 2019 the applicant applied to the Tribunal for review of the decision to refuse to grant the medical treatment visa.

7. On 21 October 2021 the Tribunal wrote to the applicant for three reasons.

8. 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 8 November 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal determined 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 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’ that the applicant was directed to complete and return to the Tribunal within seven days. The Tribunal never received a completed form from the applicant.

9. The second reason was to invite the applicant under s.359(2) of the Act to provide information. The information requested is detailed later in this decision record.

10. 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 is detailed later in this decision record.

11. The applicant was advised of the consequence of failing to provide information, or failing to comment on or respond to information. Namely, the Tribunal hearing would be cancelled and the Tribunal would make a decision without taking any steps to allow or enable the applicant to appear at the Tribunal. The Tribunal has no power to hold a Tribunal hearing in circumstances where s.360(3) of the Act is applicable. The Tribunal cannot do something that an applicant is not permitted to do: s.363A of the Act.

12. The applicant did not provide information, and did not comment on or respond to information. 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

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

14. 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.

15. 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 delegate

16. The applicant identifies that he is presently located in Australia. The purpose of his stay is for ‘medical treatment (including organ recipient) or consultation in Australia.’ This was selected by the applicant from a drop down field of prepopulated answers on the online form. There is no evidence that the applicant intends to receive or donate an organ.

17. The applicant identifies that he holds a Chinese passport which expires [in] 2029 and that he was born in [location], Fujian, China. He describes his relationship status as de facto. He identifies that he is in contact with this person whose name is [Ms A] and that she is in Australia. He detailed that he had overstayed his visa in Australia and that he had applied for a protection visa that had been refused.

18. The applicant claimed that the funding for his stay would be self-funded. He was asked for details of the funds that would be available, and the applicant responded ‘myself.’ The applicant was asked to provide brief details of their medical treatment in Australia and its estimated costs. The applicant wrote ‘Hepatitis B carrier.’ He will be under care in Australia from 21 September 2019 to 21 September 2020. The medical treatment will be provided by [Dr B] of Medical [centre], [Suburb 1], New South Wales. A completed Form 1507 was signed by [Dr B] on 19 September 2019. The medical condition requiring treatment was described as ‘Hepatis B carrier’ and the treatment information was detailed as ‘[the applicant] requires gastroenterologist review for Hepatitis B carrier.

    Delegate decision

19. The delegate detailed the applicant’s migration history, which the Tribunal has reproduced with corrections and more detail to provide a better narrative of that history. The delegate decision details that the applicant has been an unlawful non-citizen in Australia for a total of 7 years, 5 months and 10 days.

    Review application to Tribunal

20. On 21 October 2021 the Tribunal wrote to the applicant under s.359(2) of the Act and requested information to demonstrate how the applicant satisfied cl.602.215 of the Regulations. As noted previously, the applicant did not provide information in response to this request.

21. On 21 October 2021 the Tribunal wrote to the applicant under s.359A of the Act and invited the applicant to comment on or respond to the following information which would be a reason or part of the reason for affirming the decision under view. The particulars of the information were as follows:

    ·Records demonstrate that you have a debt to the Commonwealth through unsuccessful court litigation as follows:

    [number] – Litigation - Customer No [number] - $9,817.00 for Court cases [number] & [number] & [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.

    ·Records demonstrate that you have a debt to the Commonwealth through an unsuccessful Tribunal review as follows:

    Debt of $1,400.00 – 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.

22. The Tribunal detailed that ‘this information is relevant because cl.602.217(1) of the Regulations require that you satisfy Public Interest Criterion 4004. Public Interest Criterion 4004 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. If you do not meet cl.602.217(1) of the Regulations, then the Tribunal will affirm the decision to refuse to grant the medical treatment visa. You are invited to give comments on or respond to the above information in writing.’

23. As noted previously, the applicant did not comment on or respond to this information.

    FINDINGS AND REASONS

24. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment as required by cl.602.215 of the Regulations. The applicant is required to satisfy this clause because he does not satisfy cl.602.212(6) of the Regulations. He does not satisfy cl.602.212(6) of the Regulations because the applicant has not reached 50 years of age.

25. If the applicant satisfies cl.602.215 of the Regulations, then the Tribunal will need to consider whether the applicant satisfies cl.602.217 of the Regulations.

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

    Does the applicant have a genuine intention to stay temporarily for the visa purpose?

27. The Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the following reasons.

28. First, the state of the medical evidence is very poor. The evidence consists of nothing more than a completed Form 1507, which is not evidence that the applicant has been diagnosed with Hepatitis B. For all the Tribunal knows, the applicant may have attended on the medical practitioner and self-reported that he had Hepatitis B for the purpose of obtaining a referral for medical treatment for this condition not because he actually had this medical condition, but because he wanted a medical treatment visa. The Form 1507 is not evidence of a medical diagnosis. Further, given that there is no evidence that the applicant saw the gastroenterologist, the Tribunal does not accept that the applicant was bona fides when he claimed that he genuinely intended to remain in Australia for medical treatment. The Tribunal is satisfied that if that was the applicant’s intention, there would be some evidence of the applicant’s attendance on the gastroenterologist. The Tribunal is satisfied that there is no such evidence because the applicant did not have any medical treatment. He did not have any medical treatment because that was not his purpose staying in Australia.

29. Second, the applicant’s migration history demonstrates a determination to remain in Australia permanently. The applicant lodged not one but two protection visa applications. The lodging of a protection visa application is evidence that the applicant is unable or unwilling to return to China. The fact that the applicant remained in Australia following the refusal to grant him a protection visa in 2011 demonstrates that he will not leave Australia. The intention to remain in Australia permanently is further demonstrated by the fact that the applicant remained in Australia after September 2020, which is when the applicant suggested that his medical treatment would end.

30. The Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment.

    CONCLUSION

31. Given the above findings, the applicant does not satisfy cl.602.215 of the Regulations. As the applicant does not satisfy cl.602.215 of the Regulations, it is unnecessary to consider whether the applicant satisfies cl.602.217 of the Regulations.

    decision

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

    Nathan Goetz
    Member