1932020 (Migration)

1932020 (Migration) [2021] AATA 5250 (28 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932020
MEMBER:Michael Judd
DATE:28 October 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 28 October 2021 at 4:21pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – no response to s 359 invitation – medical or related purpose – treatment for depression – medical treatment requirements – unfit to depart – no disadvantage requirement – genuine temporary entrant – migration history – length of stay in Australia – adequate means of support – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 359, 359C, 360, 363A, 417
Migration Regulations 1994 (Cth), Schedule 2, cls 602.211, 602.212, 602.214, 602.215, 602.216
CASES
Hasran v MIAC [2010] FCAFC 40
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 on 23 October 2019 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 applied for the visa on 2 October 2019. 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).
The delegate refused to grant the applicant the visa because she was not satisfied that clause 602.215 was met at time of decision.
On 6 October 2021 the Tribunal wrote to the review applicant pursuant to section 359 of the Act, inviting the review applicant to provide copies of all medical reports, referrals and opinions brought into existence from the date of delegate’s decision relating to the medical visa application. This material was considered important to the review as the Tribunal must make a ‘time of (Tribunal) decision’ assessment, not at time of application.
The invitation was sent to the applicant at the last email address provided in connection with the review. It advised that, if the information was not provided in writing by 20 October 2021 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has decided to proceed to decision without taking further steps to obtain the information. The decision is founded upon all documents and information provided to the department at first instance. Notably, the visa applicant has provided no evidence or information to the Tribunal post lodging of the review application on 11 November 2019. Further, the evidence or information provided to the department was, at best, scant, consisting of solely a Form 1507.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
The determinative issue in this case is whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Is the visit for medical or related purposes?
Clause 602.211 requires that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes. Based upon information lodged to the department within the submitted Form 1507, and assessed subjectively, the Tribunal accepts that the visa applicant meets the requirements in cl 602.211. He has claimed to have a medical condition requiring treatment, being depression for which he required anti-depressant medication. There is no evidence that the applicant ever consulted any other health professionals.
Are the medical treatment requirements met?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required.
Relevantly to this matter, cl 602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Surrogate motherhood issues do not arise in this matter. Broadly speaking, it requires that:
·the arrangements for treatment have been concluded – the Tribunal has identified no evidence or information to satisfy this sub-criteria;
·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia – this sub-criterion is not relevant to the Tribunal’s considerations.
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community – for the purposes of this decision the Tribunal accepts that the visa applicant meets this sub-criteria, there being no evidence or information to the contrary;
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded – no evidence or information is before the Tribunal upon which the Tribunal could find that the visa applicant meets this sub-criterion; and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment – no evidence or information is before the Tribunal upon which it could reasonably find that the visa applicant meets this sub-criteria.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The Tribunal finds that the visa applicant does not meet one of the requirements set out in cl 602.212(2)(a) - (f). Where an applicant does not meet one of the applicable requirements, there is no need to consider the remainder. Given the above findings, the requirements in cl 602.212(2) are not met.
Is the applicant unfit to depart Australia?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant:
·is in Australia – there is no information before the Tribunal to indicate the visa applicant is offshore at time of decision;
·has turned 50 – the visa applicant was born on [date]. He 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 – there is no evidence or information before the Tribunal to satisfy this sub-criteria; it is not satisfied; 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 – there is no evidence or information before the Tribunal to satisfy this sub-criterion.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
Given the above findings, the requirements in cl 602.212(6) are not met.
Will the visa grant result in no disadvantage?
Clause 602.214 requires that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted.
This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6). The Tribunal has found the visa applicant is not medically unfit to depart Australia.
There is no evidence or information before the Tribunal to support a finding that an Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted. Accordingly, the visa applicant meets clause 602.214.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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). The visa applicant is not medically unfit to depart.
The visa applicant’s migration history to date
The decision record indicates as follows:
a.[In] August 1998, the applicant arrived in Australia as the holder of a Visitor (subclass 676) visa;
b.On 21 September 1998, the applicant lodged a Protection visa application. This was refused on 24 October 1998;
c.On 26 November 1998, the applicant sought a review of the decision at the previous Refugee Review Tribunal. This was affirmed [in] March 1999;
d.On 06 February 2007, the applicant applied for Ministerial Intervention under Section 417. This was determined to be considered on 05 June 2007;
e.On 21 April 2009, the applicant lodged a second Protection visa application. This was determined to be Section 48 barred on 02 October 2009;
f.On 21 April 2009, the applicant again applied for Ministerial Intervention under Section 417. This was determined to be considered on 12 May 2011;
g.On 02 April 2013 the applicant lodged a third Protection visa application. This was refused 24 April 2014;
h.On 30 May 2014, the applicant sought a review of the decision at the previous Refugee Review Tribunal (RRT). This was affirmed [in] March 2016;
i.On 22 March 2016, the applicant yet again applied for Ministerial Intervention under Section 417. This was determined to be not referred on 31 March 2016;
j.On 14 April 2016, the applicant lodged an appeal to the Federal Court which resulted in Minister Win being recorded [in] September 2017;
k.On 23 November 2017, the applicant lodged a second appeal to the Federal Court which resulted in Minister Win being recorded [in] September 2019. The applicant currently holds a Bridging visa E (subclass 050) visa; and
l.As at time of delegate’s decision the applicant had been an unlawful non-citizen for 5091 days.
This information indicates that the applicant has not departed Australia since his arrival [in] August 1998, and has been resident in Australia for over twenty three years either unlawfully or on bridging visas. He has availed himself of every opportunity to challenge adverse decisions of the department, the previous RRT and the Federal Court on appeal. Considered cumulatively, this is overwhelmingly indicative of the applicant not having a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.
The visa applicant provided no medical evidence in support of his application other than in the form of a Form 1507 making vague reference to ‘depression’.
The Tribunal has had regard to whether the applicant complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. He last held a Visitor (subclass 600) visa [in] September 1998. Whilst no issues of non-compliance were identified during the term of the Visitor visa, the applicant has remained in Australia either unlawfully or on bridging visas ever since.
It would be a general condition of this medical treatment visa, if granted, that there be no further stay. Based upon the above information concerning the applicant’s extensive residence in Australia and the lack of any meaningful engagement in both the departmental and Tribunal processes, the Tribunal finds that if this visa were granted the applicant would not intend to stay only temporarily. His background history overwhelmingly indicates otherwise.
Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirements in cl 602.215 do apply.
In the present case, the visa applicant seeks the visa for the purposes of treatment for depression. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.
The Tribunal finds that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl 602.215(1)(a) to (c).
Does the applicant have access to, or adequate means of support?
Clause 602.216 requires the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6); the applicant is not medically unfit to depart. For the purposes of this decision the Tribunal accepts that clause 602.216 is met.
Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
ATTACHMENT
Migration Regulations 1994
Schedule 2
602.212 (1)    The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2)All of the following requirements are met:
(a)    the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b)    arrangements have been concluded to carry out the treatment;
(c)     if the treatment is an organ transplant:
(i)the donor of the relevant organ is accompanying the applicant to Australia; or
(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f)     either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3)All of the following requirements are met:
(a)    the applicant seeks to donate an organ for transplant in Australia;
(b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c)     the applicant satisfies public interest criterion 4005;
(d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(e)     either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Support person
(4)All of the following requirements are met:
(a)    the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i)the requirements described in subclause (2) or (3) are met; or
(ii)the requirements described in subclause 675.212(2) or (3) are met; or
(iii)the requirements described in subclause 685.212(2) or (3) are met;
(b)    the person to whom the applicant is to provide support holds:
(i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c)     the applicant satisfies public interest criterion 4005.
Western Province of Papua New Guinea
(5)All of the following requirements are met:
(a)    the applicant is a citizen of Papua New Guinea;
(b)    the applicant resides in the Western Province of Papua New Guinea;
(c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
Unfit to depart
(6) All of the following requirements are met:
(a)    the applicant is in Australia;
(b)    the applicant has turned 50;
(c)     the applicant has applied for a permanent visa while in Australia;
(d)    the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e)     the applicant has been refused the visa;
(f)     the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Financial hardship
(7)All of the following requirements are met:
(a)    one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant holds:
(i)a Subclass 602 visa; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;
(e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;
(g)     the applicant has compelling personal reasons to work in Australia;
(h)    the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8)All of the following requirements are met:
(a)    one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant has compelling personal reasons for the grant of the visa;
(d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).

[2021] AATA 5250

28 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice