2113357 (Migration)

2113357 (Migration) [2022] AATA 5019 (21 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Christopher Levingston (MARN: 9301108)
CASE NUMBER:  2113357
MEMBER:Michael Judd
DATE:21 December 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 21 December 2022 at 3:58pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – genuine temporary entrant – migration history – long residence – previous application for permanent visa refused – current application made shortly after withdrawing application for judicial review of that decision – not medically unfit to depart – no arrangements for treatments made and no information about costs and expenses provided – close family members in Australia – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.211, 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 September 2021 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 10 September 2021. 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’s reasons for decision
Clause 602.215 in Schedule 2 of the Migration Regulations is a criterion that must be satisfied.
The decision record indicates that the delegate was not satisfied that clause 602 was satisfied by the applicant. This clause provides that:
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.
The applicant lodged an application for a Medical Treatment visa stating she would like to remain in Australia to seek medical treatment. During the assessment of the application, Departmental systems were consulted, and the amount of time already spent in Australia along with the applicant's migration history, gave rise to concern in the mind of the delegate over the applicant's intention to be a genuine temporary entrant and their incentive to return to their home country.
On 14 September 2021, the applicant was sent a Natural Justice letter inviting comment and to provide evidence regarding her intention to be a genuine temporary entrant, her incentive to depart Australia and her migration history. Departmental records demonstrated to the delegate that the applicant first entered Australia on 02 November 2009 and since then had only departed Australia for a total period of 35 days.
The decision record indicates that since entering Australia the applicant demonstrated an intention to remain permanently by applying for a Protection Visa which was refused by a delegate on 24 September 2014. Following the refusal, the applicant sought review at the RRT who affirmed the Department's decision on 05 January 2017. On 30 January 2017 the applicant sought judicial review but withdrew this on 19 August 2021. The applicant now makes an application for a Medical Treatment (Subclass 602) Visa. The delegate noted that all the applicant's closest family members (spouse and children) remain onshore and have also unsuccessfully attempted to remain permanently as a family unit.
A response period of seven days was afforded to the applicant to provide a response to the Natural Justice letter regarding her migration history. Additional documentation was received in the form of passport copies, an optician statement, and Departmental Form 80. There was no evidence of the applicant's intention to be a genuine temporary entrant or of the applicant having any intention to depart Australia submitted. The delegate acknowledged that the applicant may be seeking medical treatment in Australia, but the applicant must nevertheless satisfy the decision maker that they intend to comply with visa conditions, be a genuine temporary entrant and that they have incentive to depart Australia if a visa were to be approved. In their Medical Treatment visa application, the applicant had not provided sufficient documentation to demonstrate their intention or incentive to depart Australia at time of decision or in the near future. Departmental records confirmed that the applicant had unsuccessfully applied for a permanent visa onshore, had taken every opportunity to present her case or circumstances for review and has also not complied with previous visa validity.
The delegate found that the applicants adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis. The delegate considered the claims and supporting evidence that the applicant had provided with their application and found that the applicant was attempting to utilise the Medical Treatment visa pathway to maintaining ongoing residence, and that she does not genuinely intend to remain in Australia on a temporary basis. The delegate was not satisfied that the applicant met the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations. It was necessary for the applicant to satisfy subclause 602.215(1), as she had not satisfied the requirements of subclause 602.215(2).
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.

In the view of the delegate the applicant did not satisfy subclause 602.215(6) as she had not demonstrated that she is unfit to depart Australia. As clause 602.215 was not met by the applicant, the delegate found that the criteria for the grant of a Medical Treatment visa were not met by the applicant; the delegate refused the application by the applicant for a Medical Treatment visa.
The application for review and Tribunal process

The applicant lodged an application for Tribunal review on 1 October 2021. On 7 November 2022 an invitation to attend a hearing and to give evidence and present arguments was sent to the applicant through her representative. The scheduled hearing date was 2 December 2022. The hearing did not proceed because on 22 November 2022 notification was received from the representative to the effect that the applicant wished the matter to be heard on the papers, rather than to give evidence and present arguments at a hearing.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATIONS OF CLAIMS AND EVIDENCE
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 [insert brief description of issue].
Is the visit for medical or related purposes?
Clause 602.211 requires that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes. Legal advice sought by the presiding member is to the effect that this requirement should be considered subjectively; for the purposes of this decision, it is accepted that the requirements in cl 602.211 are met.
Are the medical treatment requirements met?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl 602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:
·the arrangements for treatment have been concluded – the Tribunal notes that the medical treatment being sought as identified in the visa application was ‘ocular hypertension requiring referral to a specialist for examination and ongoing checks’ and ‘glaucoma’. The Tribunal has sighted a referral letter from a [Dr A] to a [Dr B] dated 9 August 2021, seeking examination of her with respect to possible glaucoma and to rule out cranial injuries. There is no information or evidence upon either the department or Tribunal document holdings that the applicant attended an appointment with [Dr B] or any diagnosis. The Tribunal is not satisfied that arrangements for treatment have been concluded;
·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia – this is not applicable to the applicant’s circumstances;
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community – there is no information indicating that the applicant suffers from any disease or condition not related to the claimed medical conditions;
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded – this is unable to be determined as there is no information before the Tribunal to make a finding; and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment – as per above, this is unable to be determined upon the current state of the evidence.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
Given the above findings, the requirements in cl 602.212(2) are not met.
Is the applicant unfit to depart Australia?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant:
·is in Australia – this is satisfied.
·has turned 50 – the applicant is aged [age]. This is not satisfied.
·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 – this aspect is not satisfied by the applicant; 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 – there is no information or evidence before the Tribunal to satisfy this requirement. This is not satisfied by the applicant.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
Given the above findings, the requirements in cl 602.212(6) are not met. The applicant is not unfit to depart Australia.
Will the visa grant result in no disadvantage?
Clause 602.214 requires that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6); she is not unfit to depart Australia. Accordingly, the requirement in cl 602.214 does apply to the applicant. The applicant has provided no information to the Tribunal upon which it can determine what medical treatment or consultations may be required for her claimed medical conditions. Given this position the requirements of clause 602.214 are not met.
Does the applicant have access to, or adequate means of support?
Clause 602.216 requires the applicant to have adequate means, or access to adequate means, to support herself during the period of the intended stay in Australia. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6); as stated, the applicant is not unfit to depart Australia. The applicant has provided no information or evidence to the Tribunal upon which it could assess her means to support herself or her access to adequate means for the period of intended stay. Given this situation, the requirements in cl 602.216 are not met.
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); as indicated, the applicant is not unfit to depart Australia.
In the present case, the visa applicant seeks the visa for the purposes of seeking medical treatment and for related purposes concerning the conditions of ocular hypertension and glaucoma. These are purposes for which a Medical Treatment visa may be granted: cl 602.212.
The Tribunal notes that the visa applicant has provided no information or evidence to the Tribunal turning upon the key issue as to whether she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. As such, the Tribunal has considered the following matters:
i.Since first entering Australia [in] November 2009 and up to the present, the visa applicant has been offshore for a total period of only three weeks, [being] December 2010 [to] January 2011. At time of this decision, she has not departed Australia for nearly twelve years;
ii.She has indicated a strong intention to reside permanently in Australia through applying for a protection visa on 30 January 2014. The application was refused by the delegate on 24 September 2014, following which the applicant sought Tribunal review. The application for review was unsuccessful on 2 January 2016, following which the applicant appealed to the Federal Circuit Court. She withdrew this appeal on 19 August 2021. She applied for this medical treatment visa one month later 10 September 2021.
iii.It is noted that the applicant’s family also sought to remain permanently in Australia through joining the applicant’s litigation.
It is for the applicant to demonstrate that she has a genuine intention to stay temporarily in Australia, having regard to the considerations set out in cl 602.215(1)(a) to (c). It would be a general condition of a medical treatment visa, if granted, that there would no further stay. The Tribunal is not satisfied based upon all of the evidence that the applicant would not stay further in Australia if the visa is granted. Based upon all of the information and evidence before the Tribunal, considered individually and collectively, the Tribunal finds that clause 602.215 is not met at time of decision.
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.
Michael Judd
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).

[2022] AATA 5019

21 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction