2003389 (Migration)

[2022] AATA 386

2003389 (Migration) [2022] AATA 386 (31 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003389

MEMBER:Mark Bishop

DATE:31 January 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 31 January 2022 at 12:26pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – medically unfit to depart Australia – immigration history – maintaining ongoing residence in Australia – compelling or exceptional circumstances – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

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 on 31 January 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).

2. The applicant applied for the visa on 3 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).

3. The applicant appeared before the Tribunal on 31 January  2022 and to give evidence and present arguments.

4. The applicant provided a copy of the decision record to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. 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.

9. 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.

10. 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.

11. Clause 602.212 (6) (f) provides as follows:

12. “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

13. The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

14. 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”

15. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

16. 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.

17. Hence the applicant does not meet the criteria set out in cl.602.215 (6).

18. Accordingly the Tribunal turns to cl.602.215.

19. In his Application for a Medical Treatment Visa dated 3 December 2019 the applicant declared he had been suffering from “depression and anxiety … and would provide estimated costs later” .The Form 1507 provided to the Department outlined a medical condition of “depression/anxiety”. Treatment information was “medication for insomnia and psychological therapy but [the applicant] rejected it”. In evidence to the Tribunal the applicant advised this summary statement was correct.

20. The applicant advised the Tribunal he did not challenge the findings of the delegate. In evidence the applicant advised the findings of the delegate concerning his immigration history were correct.

21. The delegate summarised the applicant’s immigration and visa history as follows:

    Departmental records demonstrates that:

    ·    [In] June 2015 you arrived in Australia as the holder of a Visitor (subclass 601) visa and you have not departed.

    ·    On 25 August 2015 you lodged a Permanent Protection (class XA) visa. This application was deemed invalid on 31 August 2015.

    ·    On 15 September 2015 you lodged a second Permanent Protection (class XA) visa. This visa was refused on 22 January 2016 and you sought review at the Administrative Appeals Tribunal (AAT) on 17 February 2016. On 19 September 2016 the AAT affirmed the decision. You sought a further review at the Federal Court [in] October 2016. This resulted in a Minister win being recorded [in] November 2017. You sought a further review at the Full Federal Court [in] December 2017. This resulted in a Minister win being recorded [in] August 2019.

    ·    You currently hold a Bridging visa E (class WE) (subclass 050) visa.

22. The delegate made the following findings:

    ·The applicant was afforded seven days to provide comment on their Migration History. To date no response has been received by the Department.

    ·In the Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future. Departmental records confirm that they have unsuccessfully applied for a permanent visa onshore. I find that their migration history strongly indicates that they intend to continue to seek a visa pathway to remain in Australia.

    ·The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state they must remain in Australia for ongoing consultation. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.

    ·At the time of decision, the applicant has not presented any personally compelling or exceptional circumstances to warrant departure from the legislative requirement of the genuine visit criterion which is mandatory for the grant of a Medical Treatment visa.

    ·I have considered the claims and supporting evidence that they have provided with their application. On balance, I find that they are attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

    ·I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.

23. In evidence to the Tribunal the applicant advised as follows:

    ·The findings of the delegate concerning his visa/immigration history were correct. He currently lived in Australia as the holder of a Bridging visa E. Conditions attached wee No Work and No Study.

    ·He had not worked for 2 years. He lived in Australia with his wife and adult son. His wife did not work. He survived by borrowing from people in Australia and his home country. He could not recall how much he had borrowed for the last 2 years.

    ·He advised he had not received any medical treatment in Australia since December 2019. He advised he did not have a current appointment for any future medical treatment. He did not have any medical consultations at the date of decision.

24. Her visa and immigration history as outlined in the decision record was correct.

25. The Tribunal is satisfied 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.

26. There is insufficient evidence for the Tribunal to find the “applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”.

27. Given the above findings, cl 602.215 is not met.

    DECISION

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

    Mark Bishop

    Member