2005027 (Migration)

[2021] AATA 5468

2005027 (Migration) [2021] AATA 5468 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2005027

MEMBER:Frances Simmons

DATE:21 December 2021

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

Statement made on 21 December 2021 at 12:38pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant failed to provide requested information – applicant has not provided any evidence about the medical treatment – adverse migration history – strong motivation to remain in Australia indefinitely – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 359, 360, 363

Migration Regulations 1994, Schedule 2, cl 602.215

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 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 January 2020. 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 because the delegate was not satisfied that the applicant met cl.602.215. The delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment. The applicant applied for review of this decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant satisfies cl.602.215 of the Regulations.

   The visa application and delegate’s decision

6. The applicant is a Chinese national born on [date]. On 20 March 2017 he arrived in Australia holding a visitor visa. The delegate’s decision records that:

   On 24 May 2017, the applicant lodged a Protection (subclass XA) visa, which was refused on 20 September 2017. The applicant sought a review for the refused Protection visa, including an appeal to the Federal Court, which resulted in Minister Win on 17 December 2019.The applicant currently holds a Bridging E (subclass 050) visa. During the applicant’s time in Australia, the applicant has been an unlawful non-citizen for over one year, 7 months and 10 days.

7. The applicant applied for a medical treatment visa on 9 January 2020. In this application he stated he wanted to remain in Australia until 21 January 2021 for the purpose of medical treatment for “Left hand fracture and right-hand fingers chronic pain”. A Form 1507 dated 24 December 2019 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia. The form 1507 provides the following treatment information: ‘medical imaging/ injection frequently needed, operation needed, pain management, ongoing review’.

8. The delegate wrote to the applicant and invited him to comment on his migration history and whether he met clause 602.215 of the Regulations. The applicant responded via email and stated he did not receive the decision refusing him a protection visa and therefore it was not his fault he overstayed. The delegate was not satisfied that the applicant genuinely intended to remain in Australia temporarily for the purpose of medical treatment and concluded that the applicant did not meet cl.602.215 of the Regulations.

   The application to the Tribunal

9. On 25 November 2021 the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting the review applicant to provide information about whether he met the requirement in cl 602.215. The invitation was sent to the last address provided in connection with the review and the applicant was advised that, if the information was not provided in writing by 9 December 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. On the same date, the Tribunal also wrote to the applicant and invited him to a hearing via Microsoft Teams on 10 December 2021. The hearing invitation stated that if the Tribunal did not receive his response to the request for information under s.359(2) of the Act by 11:59pm on 9 December 2021, the hearing would be cancelled. The Tribunal did not receive a response to this request by 9 December 2021 or a response to the hearing invitation.

10. The Tribunal finds that applicant has not provided the information requested pursuant to s 359(2) 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. Because the applicant did not respond to the request for information made under s 359(2) of the Act within the prescribed period the applicant has lost his entitlement to a hearing. The Tribunal notes that was no request was made by the applicant to extend the time for responding to the Tribunal’s request for information and nor did the applicant respond to an invitation to attend a hearing on 10 December 2021.  Accordingly, the Tribunal cancelled the hearing scheduled to occur by Microsoft Teams at 3:00pm on 10 December 2021. However, unfortunately the applicant was not informed and accessed the link to Microsoft Teams.

11. 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 to appear: Hasran v MIAC [2010] FCAFC 40. With the assistance of a telephone interpreter in the English and Mandarin languages, on 10 December 2021 the Tribunal explained to the applicant that he had lost his entitlement to a hearing because he had not responded to the request for information due on 9 December 2021. The Tribunal also informed the applicant that it would provide him with a further opportunity to provide information in support of his claim to meet cl.602.215. The Tribunal explained that this information must be provided by the due date and after that time the Tribunal may make a decision at any time. The Tribunal advised the applicant he would receive a letter inviting him to provide further information in support of case.

12. On 13 December 2021, the Tribunal wrote to the applicant, explained he had lost his entitlement to a hearing, and again invited him to provide information to support his claim that he met cl.602.215, namely that he genuinely intends to stay in Australia temporarily for the purpose of medical treatment, by 20 December 2021.  The applicant did not respond to the invitation to provide further information by 20 December 2021, however an email response was received on 21 December 2021.This response can be summarised as follows:

    ·The applicant cannot return to China as he is scared of persecution even though his protection visa was refused.

    ·Due to the COVID-19 outbreak and current concerns about the Omicrom variant he cannot travel air because of ‘life risk’.

    ·The applicant genuinely intends to apply for the Medical Treatment visa for his medical condition. This application is supported by his medical practitioner and he needs to continue treatment in Australia.

13. The applicant’s email submission dated 21 December 2021 refers to his medical practitioner supporting his application however the submission was not accompanied by any medical evidence or reports. 

14. Having carefully considered the available evidence, the Tribunal has therefore decided to proceed to a decision based on all the information before it without taking further steps to obtain information from the applicant.

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

15. 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.

16. There is no evidence that has applied for a permanent visa in Australia and met all the criteria for that visa other than the health criteria and been refused the visa. There is also no evidence that he is medically unfit to depart Australia. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

17. In the present case, the visa applicant seeks the visa for the purposes of medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

18. Having carefully considered the evidence before it, the Tribunal is not satisfied that the applicant genuinely intends to remain in Australia temporarily for the purpose of medical treatment. 

19. First, the applicant’s migration history and, indeed, his submissions to the Tribunal on 21 December 2021 indicate to the Tribunal that he wishes to remain in Australia on an ongoing basis. Before he applied for a medical treatment visa, the applicant had unsuccessfully applied for a protection visa and he has not departed Australia since. In a submission to the Tribunal on 21 December 2021, the applicant stated he did not want to return to China because he feared persecution in that country even though his protection visa was refused. The Tribunal considers this statement indicates that the applicant seeks to remain in Australia on an ongoing basis, and not temporarily.

20. Second, in the visa application the applicant claimed that he required the medical treatment until 9 January 2021. A significant period of time has now passed since that date. While the applicant has referred to his fear of persecution in China and the COVID-19 pandemic, the applicant has not provided any information to the Tribunal that indicates that he needs to remain in Australia to temporarily for the purpose of medical treatment. The applicant has remained in Australia for 11 months after the time he claimed to need medical treatment had passed and has not provided any evidence about the medical treatment he has received since applying for the medical treatment visa. This causes the Tribunal to be concerned that the applicant seeks to remain in Australia on an ongoing basis for purposes that are not connected to medical treatment.

21. Third, the applicant has provided scant information about the medical treatment that he requires. The only evidence that the applicant has provided in the form 1057 and this does not explain why the applicant sought to remain in Australia from 9 January 2020 to 9 January 2021, a period of 12 months, for medical treatment. As noted above, no evidence has been provided that the applicant has sought medical treatment after 9 January 2021. In submissions of 21 December, the applicant has referred to requiring ongoing medical treatment for his medical condition, but no medical evidence is provided about whether his hand fracture and chronic hand pain still requires treatment.

22. Finally, the applicant’s submissions to the Tribunal on 21 December 2021 indicate to the Tribunal that the applicant does not intend to return to China. There is no evidence before the Tribunal about when he plans to depart Australia and the applicant’s own submission indicates that he has no plans to do so. Having regard to his immigration history, the timing of his application for a Medical Treatment visa, and the lack of information about his current medical treatment or when this treatment will conclude all cause the Tribunal to be concerned that he does not have an intention to only stay temporarily in Australia for medical treatment. The Tribunal is not satisfied that the applicant genuinely intends to remain in Australia temporarily for the purpose of medical treatment.

23. For all of the above reasons, the Tribunal is not satisfied that the applicant genuinely intends 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). Given the above findings, cl 602.215 is not met.

    CONCLUSION

24. 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

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

    Frances Simmons
    Member