2003508 (Migration)

[2022] AATA 1496

2003508 (Migration) [2022] AATA 1496 (28 April 2022)

AppID: 2003508

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003508

MEMBER:Mark Bishop

DATE:28 April 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 28 April 2022 at 12:21pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – no evidence of deteriorating disease or health condition – maintaining ongoing residence in Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 602.212

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 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).

2. The applicant applied for the visa on 9 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 delegate refused to grant the applicant the visa.

4. The applicant was invited to attend a hearing before the tribunal. On 20 and 21 January 2022 the applicant wrote to the Tribunal and advised he would not attend the scheduled hearing and requested a decision be issued on the papers.

5. The Tribunal issued a decision on the papers.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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.

10. 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.

11. 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.

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

13. “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

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

15. 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”

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

17. The applicant was born on [date specified]. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

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

19. Accordingly the Tribunal turns to cl.602.215.

20. In his Application for a Medical Treatment Visa dated 9 December 2019 the applicant declared he was seeking “back pain treatment” in Australia at [a named health service] in the period 9 December 2019 until 9 December 2020. He provided a copy of a Form 1507 Evidence of Intended Medical Treatment that outlined details of his medical condition as “back pain treatment” and treatment information as “complaining back abdomen pain and acupuncture and massage treatment relieving the pain”.

21. The decision record summarised the applicant’s visa history, his application for a medical visa and his response to the Department as follows:

    ·“I have genuine intention to apply for medical visa and I will obey the visa condition if it is granted.

    · I understand that I have a complicated immigration history such protection visa application due to strong fears to return to my home country, however I tried my best to obey my visa condition always. My previous application was based on my actual situation and they were all genuine application and I never overstayed my visa and always keep close contact with immigration.

    ·with my current medical visa application. I have provided with supporting documents and I have been really suffering from serious medical condition and I do need treatments in Australia. I wish the immigration will consider that I have been away from China for long time and I do not trust their medical system. I always trust Australian doctors and medical system as they always tell me the truth. I hope you can grant me this visa and allow me to take further treatment here. I declare that I will obey my visa condition and support my living.

    ·Your consideration is appreciated.”

22. The delegate made the following finding:

    ·“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.”

23. The Tribunal has considered all the above information. There is no evidence before the Tribunal the applicant has been receiving any medical treatment in Australia for a lengthy period of time.  There is no evidence before the Tribunal the applicant has current plans to seek medical treatment.  There is no evidence before the Tribunal the applicant has plans to leave Australia. There is no documentation or additional information before the Tribunal that was not before the delegate. 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 he must remain in Australia for ongoing consultation. There is no evidence before the Tribunal the applicant has a current consultation and or plans for future consultation. Information provided does not state that the treatment the applicant was seeking as at the time of his Application for a Medical Treatment Visa was  unavailable outside of Australia and in the applicant’s home country.

24. The Tribunal has considered the claims and supporting evidence that the applicant has provided with his application.

25. The Tribunal finds 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. Given the above findings, cl 602.215 is not met.

27. 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

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

    Mark Bishop

    Member