2003373 (Migration)

2003373 (Migration) [2022] AATA 624 (21 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2003373

MEMBER:Mark Bishop
DATE:21 February 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 21 February 2022 at 2:34pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – medically unfit to depart Australia – period of unlawful residence – maintaining ongoing residence in Australia – no evidence of continuing medical treatment – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215; Public Interest Criterion 4002
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 6 February 2020 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 5 December 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 the applicant failed to satisfy the criteria set out in the relevant Migration Regulations.
The Migration Agent (MA) for the applicant advised the Tribunal inwriting he would not appear at the hearing and the applicant would appear at the hearing.
The applicant provided a copy of the decision record to the Tribunal.
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?
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.
Clause 600.215 is set out immediately below:
602.215
1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions to which the last
substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 602
visa would be subject; and
(c) any other relevant matter.
(2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:
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.
Clause 602.212 (6) (f) provides as follows:
“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
The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).
Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”
The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).
The applicant was born on [date]. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.
Hence the applicant does not meet the criteria set out in cl.602.215 (6).
Accordingly the Tribunal turns to cl.602.215.
The delegate summarised the applicant’s visa/immigration history as follows:
Departmental records demonstrates that:
·“[In] September 2013, the applicant arrived in Australia as the holder of a Visitor(subclass 600) visa. On 18 June 2014, the applicant lodged an application for Protection visa which was refused on 17 June 2015. On 09 July 2015, the applicant sought a review of the Administration Appeals Tribunal (AAT). This was affirmed on 12 September 2016. [In] September 2016, the applicant lodged an appeal to the Federal Court which resulted in Client withdrawal [in] November 2019.
·The applicant currently holds a Bridging C(subclass 030) visa;
· During their time in Australia, the applicant has been an unlawful non-citizen for 35 days.
·On 15 December 2019, the applicant lodged an application for a Medical Treatment visa. It is stated that they would like to remain in Australia until 15 December 2020 to seek medical treatment for Depression and Anxiety. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.
·On 17 January 2020, the applicant was requested to provide information regarding their visa history. The applicant was afforded 7 days to provide information. On 28 January 2020, the applicant’s migration agent provided the following statement;
·“You point out that this question has been answered negatively when it should have been answered affirmatively. We accept the error on behalf of our client. We submit that this was a clerical mistake on our part, and has no conscious intention on the part of the applicant to mislead or provide false or bogus information. [The applicant] has been our client continuously, and we are aware that his protection application was refused on 17 June 2015. However, this Medical Treatment visa application was processed by a new clerk in our office, who was not familiar with [the applicant’s] immigration history. Thus, there has been a miscommunication in this regard, where [the applicant] has indicted that he has not had any previous medical treatment visa applicants refused, which answer was applied to the general question if any visa applications refused. We are extremely apologetic about this error which caused inconvenience to you. We believe our client should not be penalised in this regard, as he has no intention to defraud or mislead you. It was an honest clerical mistake on our part. Our client and we are aware, that your office has information about his immigration history on record, and that these details cannot be lied about. We believe therefore that PIC 4002(1) is not breached and request that our client’s medical treatment visa application is grant”.
·Based on the response which demonstrates their history of remaining in Australia on continual pathway to remain in Australia. I also considered Departmental records which confirm that the applicant has unsuccessfully applied for a permanent visa and have taken every opportunity to present their case or circumstances for review. I find that their adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on a permanent basis”.
The applicant advised the Tribunal he didn’t agree with the delegate’s decision and the delegate made a mistake in refusing his Application for a Medical Visa. He said his mental state was not right. He was under stress. He advised he cannot go anywhere. He advised he cannot go to any place because he does not have work rights. The applicant did not provide any material to the Tribunal that was not before the delegate. The Tribunal considered all the material in the Departmental and Tribunal files.
In his Application for a Medical Treatment Visa dated 5 December 2019 the applicant declared the purpose of his stay was “Medical treatment…or consultation in Australia…”, that he was self-funded and declared he would be under medical care in Australia from 15 December 2019 until 15 December 2020 with “[a named health practice]” for “depression and anxiety”. The applicant provided a copy of a Form 1507 dated 21 November 2019 and signed by a [Doctor A] that outlined treatment information as intervention and counselling. He provided a copy of a [bank] Statement dated October 2019 that showed a balance of $99.
The applicant advised the Tribunal in writing he currently resides in Australia as the holder of a Bridging Visa C which has a “No Work” condition and as a consequence he does not work, does not receive any income and relies on friends for support. See Departmental file for copy of Bridging Visa C and statutory declaration. In evidence to the Tribunal the applicant advised this situation was still the case. He held a Bridging Visa C, did not hold work rights, was not working, did not have a home and was dependent upon loans and assistance from friends to survive.
The applicant did not provide a copy of an updated financial position to the Tribunal.
In evidence to the Tribunal the applicant advised he had been receiving medical treatment from a [Doctor A] on repeated occasions during all of 2020, that his last medical appointment was over the phone in early November 2021 and he had a further appointment to see [Doctor A] in mid-February 2022. The Tribunal explained there was no evidence of this continuing medical treatment on the relevant files and would like to see evidence of this past treatment and bookings for future treatment.
Accordingly the Tribunal gave the applicant until midday 1 February 2022 the opportunity to provide the following information:
·A current medical report from his treating medical professional that addressed his condition and provided a prognosis for the future.
·Receipts and appointment documentation for all medical visits and consultation during the period December 2019 until the present time.
·A list of all future medical appointments.
The Tribunal outlined the list of requests on a number of occasions and the applicant confirmed on a number of occasions he understood.
The Tribunal advised the applicant upon receipt of the above material it would review the material and issue a written decision.
Following the review hearing on 28 January 2022 the applicant requested a further adjournment until 20 February 2022 to provide the requested information. The Tribunal gave consideration to this request and in granting the adjournment as requested wrote to the applicant in the following terms:
You are requested to provide the following information in writing on or before 20 February 2022:
·A medical report from [Doctor A] or the applicant’s treating medical professional that outlines the applicant’s current medical condition and the reasons for this medical condition.
· Copies of all bookings for medical appointments or medical consultations (whether in person or by phone or video) with the applicant since December 2019 until the present time, accounts delivered for same and receipts for payment of same.
·Copies of all bank accounts where monies were transferred by the applicant or other persons for payment of all medical accounts relating to medical appointments or medical consultations as outlined in dot point 2 above.
·A list of all future medical appointments by hour and date for the applicant and when the appointments were made.
· A medical report from [Doctor A] or the relevant treating medical professional that outlines the prognosis for the applicant for the future, his current medical condition and the reasons for such medical condition.
If we do not receive the information by 20 February 2022, we may make a decision on the review without taking any further action to obtain the information.
At 11.46am on 21 February 2022 the applicant provided to the Tribunal a copy of a tax invoice and a psychological treatment plan report. These documents did not address or only barely addressed dot points 1, 3 and 5 as outlined in paragraph 27 above.
The applicant provided a letter dated 18 February 2022 accompanied by a statement of account in table form showing the applicant had attended 15 counselling sessions with the psychologist between November 2019 and February 2022.
The psychologist states he has been seeing the applicant monthly since November 2019 and expresses the opinion that it “… is clear from the clinical evidence provided that [the applicant] suffers from anxiety and depression – Major Depressive Disorder” and recommends monthly psychological counselling for the next 12 months and the applicant following the advice of any other treating health professional.
The Tribunal gives this evidence only modest weight. The evidence provided to the Tribunal indicates the applicant has seen the psychologist for 15 sessions in 27 months, not monthly as reported and as recommended for the next 12 months. Neither the psychologist nor the applicant has provided the “clinical evidence”, on which the psychologists opinion and recommended treatment plan is based, to the Tribunal.
The psychologist in his recommended treatment plan states “…pharmaceutical intervention may be recommended.” The applicant has not provided any evidence to the Tribunal of being prescribed any medication, whether he took the medicine as prescribed and whether it had any effect on his medical condition.
The psychologist’s letter does not set out any patient history or refer to any clinical tool administered by the psychologist or other appropriately qualified health professional to assess and monitor the applicant’s health condition. There is no reference in the psychologists letter or in other evidence provided to the Tribunal by the applicant of what the contributing factors are for his medical condition, how he is managing those factors and their effect on him and whether his condition is stable, has improved or has deteriorated.
The psychologist’s treatment plan includes a recommendation that the applicant “…maintain a well-balanced life of proper sleep, diet, and sufficient exercise as a daily coping mechanism.” With respect to the professional expertise of the psychologist this aspect of the applicant’s recommended treatment is expressed in such generality that it appears to not have been formulated in response to the applicant’s specific circumstances of being in Australia as the holder of a visa that does not permit him to work or study.
Under Departmental policy when considering “any other relevant matter”, decision makers may take into account a wide range of considerations to determine whether an applicant genuinely intends a temporary stay in Australia. This may include, but is not limited to, the applicant’s employment, economic and family circumstances, their credibility, the claimed purpose and period of stay, and the applicant’s previous travel history. The Tribunal is not bound by Departmental policy and brings an independent mind to these review proceedings.
The Tribunal finds as follows:
·In this Medical Treatment Visa application, the applicant has not provided sufficient documentation to demonstrate his intention or incentive to depart Australia now or in the near future. All of the evidence leads the Tribunal to the conclusion that the applicant’s migration history (see paragraph 18 above) strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis.
·As set out above the Tribunal has considered the submissions including the late submission of 21 February 2022, claims, supporting evidence and undertakings to provide additional documentation arising out of repeat requests for adjournments that the applicant has provided with his application. The Tribunal is of the view that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that he does not genuinely intend to remain in Australia on a temporary basis.
The Tribunal is not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.”
The Tribunal finds the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.
The Tribunal is of the view the applicant does not genuinely intend to stay temporarily in Australia.
Given the above findings, cl 602.215 is not met.
Concluding paragraphs
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.
Mark Bishop
Member

[2022] AATA 624

21 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice