2015282 (Migration)

[2022] AATA 387

2015282 (Migration) [2022] AATA 387 (14 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015282

MEMBER:Naomi Schmitz

DATE:14 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 14 February 2022 at 8:20am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – visa history, including unsuccessful application for protection and debt to Commonwealth – no response to tribunal’s invitations to comment or provide current information, and no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 602.215, 602.217

CASE
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 24 September 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).

   BACKGROUND

2. The applicant is a citizen of Colombia and is [age] years of age. He arrived in Australia [in] February 2012 as the holder of a [student] visa which ceased on 17 October 2012.

3. Whilst onshore, the applicant subsequently applied for and was granted a further [student] visa which ceased on 21 March 2013.

4. On 20 March 2013, one day prior to the expiry of his student visa, the applicant applied for a [permanent] visa. On 11 November 2013 a delegate refused to grant the [permanent] visa. The applicant did not depart Australia and remained onshore while seeking a review at the Tribunal, Federal Court and Full Federal Court. All review requests were unsuccessful with a Minister win being recorded [in] August 2020.

5. Thereafter the visa applicant has held a series of bridging visas.

6. On 8 September 2020 the applicant applied for a medical treatment visa that is the subject of this decision record. 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).

7. On 24 September 2020 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted: cl. 602.215.

8. On 14 October 2020 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

9. On 13 January 2022 the Tribunal wrote to the applicant for three reasons.

10. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:00am on 28 January 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant. The invitation included a ‘Response to hearing invitation form’ which the applicant was directed to complete and return to the Tribunal within 7 days. The applicant did not complete and return the ‘Response to hearing invitation’ form.

11. The second reason was to invite the applicant under s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review. The information was that:

    Your migration records indicate that:          

    ·     On 20 March 2013, one day prior to your Student visa expiring, you applied for a [permanent] visa. The application was refused on 11 November 2013.

    ·     You subsequently sought review at the Administrative Appeals Tribunal, the Federal Court and Full Federal Court of Australia. All applications for review were unsuccessful with a final result of Minister win being recorded [in] August 2020.

    This information is relevant to the review because your migration history suggests that you wish to stay permanently in Australia.

    ·Records show that you have an outstanding debt to the Commonwealth through the courts.

12. The invitation advised that this information is relevant to the review because the outstanding debt to the Commonwealth would be a reason, or part of the reason for affirming the decision under review because cl. 602.217(1) of the Migration Regulations 1994 (the Regulations) requires that the applicant satisfy Public Interest Criterion 4004. This requires that the applicant not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. If an applicant does not satisfy cl. 602.217(1) of the Regulations the applicant cannot be granted the visa.

13. The invitation to comment or respond to information was sent to the last address provided in connection with the review and the applicant was advised that if the applicant did not comment on or respond to the information in writing by 27 January  2022, the Tribunal hearing scheduled on 28 January 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act. The applicant did not comment on or respond to the information contained in the s.359A letter.

14. The third reason was to request under s.359(2) of the Act that the applicant provide the Tribunal with information to address the following:

    ·Immigration records demonstrate that you arrived in Australia on a [Student visa] on 23 February 2012. Whilst onshore, you applied for and was granted a further [Student visa] which ceased on 21 March 2013. Immigration records disclose that you have remained in Australia since that time. Why did you not depart Australia after this date?

    ·In your medical treatment visa application, you claimed that you wanted to remain in Australia from 8 September 2020 until 1 September 2022 to seek ‘psychological treatment due to very depression and anxiety the treatment may cost between 30000 and 50000AUD’. The Tribunal does not have current medical evidence concerning your medical treatment. Please provide a current medical report detailing your medical condition(s) including:

    ·     When you were first diagnosed with those condition(s);

    ·     What your current medical treatment for those condition(s) involves;

    ·     The prognosis of your medical condition(s); and

    ·     When does the medical treatment you have undertaken end or when is it due to end?

    ·Noting that you have been in Australia since 23 February 2012 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

15. The request for information was accompanied by various administrative matters, and advised the applicant that if the information was not provided in writing by 27 January 2022, the Tribunal hearing scheduled on 28 January 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act. The applicant did not provide information as requested in the letter issued pursuant to s.359(2) of the Act.

16. As the applicant did not comment on or respond to information pursuant to s.359A of the Act and did not provide information pursuant to s.359(2) of the Act, the applicant no longer had a right to appear before the Tribunal pursuant to s.360(3).  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 Tribunal has checked and confirmed that the invitation was sent to the applicant’s last address provided to the Tribunal in connection with the review.

17. The Tribunal has proceeded to decide the review application on the information it has. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CRITERIA FOR THE VISA

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

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Visa application form

20. The applicant identified that he was in Australia. He is a citizen of Colombia. He was born in Pereira Risaralda, Colombia. At the time of application he stated that he has never been married and was working as [an Occupation 1]. He disclosed that he had previously had a [permanent] visa refused and was currently on a bridging visa.

21. The applicant wrote the purpose of his stay in Australia was medical treatment. His stay in Australia would be self-funded. In his visa application he indicated he would be under medical care from 8 September 2020 until 1 September 2022 to seek ‘psychological Treatment due to very depression and anxiety the treatment may cost between 30000 AUD and 50000 AUD’.[1]

    [1] Department File [number] page 5 of visa application

22. The applicant provided a Form 1507 signed on 6 September 2020 by general practitioner [Ms A] from [a] Medical Centre. The form states the applicant will seek ‘cognitive behavioural therapy’ for ‘depression/anxiety’ from [Mr B] at [mental health service provider]. No other medical information was provided with the application or in connection with the review.

    FINDINGS and REASONS

23. 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.

24. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.602.215 of the Regulations. The applicant is required to satisfy this clause because he has not turned 50 years of age to enliven cl.602.212(6) which, if enlivened, meant that he was not required to satisfy cl.602.215 of the Regulations.

25. If the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia, then the next issue the Tribunal will consider is whether the applicant meets cl.602.217(1) which requires him to not have a debt to the Commonwealth or that the Minister (that is, Tribunal) is satisfied that appropriate arrangements have been made for the payment of that debt.

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

27. There is no evidence before the Tribunal that there has been non-compliance with the conditions of his last substantive visa or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa.

28. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507. The applicant has not provided any current or other relevant evidence which indicates that he is undergoing medical treatment and that he intends to stay temporarily in Australia for that purpose. In particular, there is no evidence, including medical or financial of the visa applicant attending [mental health service provider] for treatment. This is significant given the claimed duration of his treatment and estimated cost.

29. The Form 1507 provided by the applicant was completed in September 2020. Approximately 17 months has passed since that document was submitted and no updates on treatment have been provided. Given the Tribunal wrote to the applicant and requested information about his medical condition(s) and treatment(s) and received no response, the Tribunal suspects that the applicant attended his general practitioner once as evidenced by the completed Form 1507 and did not present again. The state of the medical evidence is poor and there is no credible or independent medical evidence to corroborate the applicant’s claims.

30. The applicant has not provided any other evidence which is consistent with an intention to stay temporarily in Australia for the purpose of undergoing medical treatment. 

31. The Tribunal is satisfied that the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) demonstrate that the applicant did not apply for the visa for medical treatment, but did so to maintain an ongoing residency in Australia. The evidence before the Tribunal indicates that the applicant has been in Australia since 23 February 2012 and has not left. The delegates’ decision record provided by the applicant to the Tribunal notes that the visa applicant lodged a [permanent] visa on 23 March 2013 which was refused and subsequently commenced an application for review at the Tribunal and judicial review at the Federal Court and Full Court of the Federal Court which were unsuccessful, with a Minister win being recorded [in] August 2020 shortly before he made the current visa application.

32. The Tribunal has considered all relevant matters including the considerations set out in cl. 602.215(1)(a) to (c). While there is no evidence of non-compliance or any evidence of an intention not to comply with visa conditions, his conduct in seeking a permanent visa indicates that he seeks to remain permanently or indefinitely in Australia and he has not provided any medical or other evidence consistent with a genuine intention to stay in Australia temporarily. Overall the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

33. Given the above findings, the Tribunal is not satisfied that the applicant meets cl. 602.215 of the Regulations. As the Tribunal is not satisfied that the applicant meets cl.602.215, it is unnecessary for the Tribunal to decide if the applicant satisfies cl. 602.217(1) of the Regulations.

    DECISION

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

    Naomi Schmitz
    Member

    
    

    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).