2201462 (Migration)

[2022] AATA 5073

2201462 (Migration) [2022] AATA 5073 (11 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2201462

MEMBER:Rachel Da Costa

DATE:11 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 11 November 2022 at 10:47am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – period of unlawful residence – applicant wife’s employment in Australia – no current evidence of medical treatment – maintaining ongoing residence in Australia – 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 18 January 2022 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 4 January 2022. He included Form 1507 with his application as required, but did not provide any other documents in support of his application.

3. 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).

4. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met the requirements in clause 602.215. The delegate found that the applicant was attempting to use the Medical Treatment visa pathway as a means to maintaining ongoing or permanent residence in Australia and that he did not genuinely intend to remain in Australia on a temporary basis.

5. The applicant lodged his application for review of the delegate’s decision on 4 February 2022. He provided a copy of the delegate’s decision with his application.

6. The applicant appeared before the Tribunal on 10 November 2022 to give evidence and present arguments. With the applicant’s agreement, the hearing was conducted by video using the Microsoft Teams platform as the Tribunal member is located in Sydney and the applicant lives in Perth. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CLAIMS AND EVIDENCE

   Background

8. The applicant is [age] years old and is a citizen of China. In the Tribunal hearing, the applicant gave evidence that in Australia, he has a wife and two children aged [ages]. His wife holds a bridging visa. The applicant and his wife and children live in a house with their landlord, who is of Chinese background, but is an Australian citizen. They have lived there for about 5 years. The applicant stays home and looks after his children and his wife works as [specified roles]. This is their only source of income. They do not own any assets in Australia. Before coming to Australia, the applicant was studying in China.

9. In China, the applicant has his mother and father and [specified family members]. The applicant’s father is retired and he used to drive trucks. His mother has never undertaken paid work. The applicant’s [sibling] works as a cashier in a petrol station. The applicant is in contact with his parents occasionally, every few months, and he is rarely in contact with [this sibling]. They live in Fuxing city, Fujian province, China.

   The applicant’s migration and visa history

10. In the hearing, the Tribunal discussed the applicant’s visa and migration history with him, as reflected in the delegate’s decision. His visa and migration history is as follows:

    ·     [In] January 2006, the applicant arrived in Australia on a Student visa. He has not departed Australia since.

    ·     On 21 January 2010, he applied for a Permanent Protection visa. This was refused on 3 June 2010 and he unsuccessfully sought review in the Refugee Review Tribunal. He also unsuccessfully sought Ministerial Intervention.

    ·     In May 2016 and July 2019, he lodged applications for Medical Treatment visas. These applications were refused. He unsuccessfully sought review of these refusals in the Tribunal and in the courts.

    ·     He has spent two significant periods of time, totalling around 6 years, in Australia as an unlawful non-citizen.

    ·     He has previously indicated to the Department that he would make arrangements to depart Australia, but he has not done so.

11. The applicant gave evidence that a friend of his wife assisted him to fill out his Medical Treatment visa application form.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

13. 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.

    Is the applicant unfit to depart Australia?

14. Clause 602.212(6) 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.

15. The applicant gave evidence to the Tribunal in the hearing that he is [age] years old. This is consistent with information provided by the applicant to the Department, including the bio-data page of his passport. The Tribunal accepts this. Accordingly, the requirements in cl 602.212(6) are not met and the requirement cl 602.215 applies.

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

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

17. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. The last substantive visa held by the applicant was his Student visa that ceased on 17 August 2008. Since that time, the applicant has held a series of bridging visas. There is no evidence to suggest that the applicant did not comply with the conditions of his last substantive visa or with the conditions of subsequent bridging visas he has held, although the Tribunal notes that he has spent a significant period of time in Australia without a visa.

18. The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject. Medical Treatment visas are subject to condition 8201 (no studies) and may be subject to condition 8503 (the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia). The evidence before the Tribunal does not indicate that the applicant intends to study in Australia if he is granted the visa. The Tribunal accepts that the applicant will comply with condition 8201. In relation to condition 8503, the Tribunal notes that the applicant applied for a Protection visa in 2010 and unsuccessfully sought review in the Refugee Review Tribunal and Ministerial Intervention. He has remained in Australia and applied for several Medical Treatment visas, including the visa that is the subject of this review. The Tribunal considers that the applicant is highly motivated to remain in Australia and it is possible, in light of his history and circumstances, that he will take steps to obtain a waiver of this condition.

19. The Tribunal has considered other matters relevant to assessing the applicant’s intention. In the Tribunal hearing, the Tribunal discussed with the applicant the purpose of a Medical Treatment visa and explained the requirement that an applicant must have a genuine intention to stay temporarily in Australia for the purpose of the visa, and explained that it is not a permanent visa. The applicant said he was aware of this.

20. The Tribunal asked the applicant why he applied for a Medical Treatment visa. He responded that he is unwell and he would like to receive medical treatment here and his wife is still working and his children are still young. The Tribunal asked the about the nature of the medical treatment proposed for him and he said he has Hepatitis B and vision problems so he needs to stay at home. At the time of the Tribunal hearing, the applicant had not provided any medical evidence in support of his visa application other than the Form 1507, which states that the medical condition requiring treatment is “chronic Hepatitis B” and the treatment is “chronic Hepatitis B surveillance”. Three pathology request forms were attached, dated 10, 11 and 12 November 2021 respectively.

21. The Tribunal asked the applicant if he was currently undertaking medical treatment and he said he was taking traditional Chinese medicine which he had obtained from Chinese medicine practitioners. He said he had no evidence of seeing these practitioners and he just purchased some Chinese medicine which he has boiled and consumed. The Tribunal asked him if he was having any other treatment and he said he was not. The Tribunal asked him if he had seen any “Western” medical doctors. He said he had not, because he has a poor understanding of English and so does his wife. The Tribunal asked him about the medical doctor, [Doctor A], who filled in the Form 1507. The applicant explained that he saw that doctor, but he didn’t keep seeing him because it is expensive and he doesn’t have much money, so he just saw traditional Chinese medicine doctors. The Tribunal confirmed with the applicant that he was not planning to see a medical doctor for medical treatment while he remained in Australia and he said this was correct. The Tribunal asked the applicant whether any arrangements had been put in place for him to have medical treatment while he was in Australia and he said there was no plan in place. The Tribunal asked the applicant how long he wanted to stay in Australia for the purpose of medical treatment and he said he did not know.

22. The Tribunal asked the applicant whether he had any other evidence to support or indicate that he has a genuine intention to stay temporarily in Australia for the purpose of medical treatment. He responded that he wishes to remain temporarily in Australia and then his whole family will return to China when the Covid-19 pandemic passes and the lockdown is lifted. The Tribunal put to the applicant that given the only evidence he had given about treatment in Australia for his medical condition was that he was having traditional Chinese medicine, the Tribunal might find that this could take place in China. The applicant responded that the pandemic situation in China is severe and many people cannot leave their homes to see a doctor.

23. The Tribunal asked the applicant what incentives he had to return to China at the end of his treatment. He responded that he was born and raised in China and he would have to go back there. The Tribunal asked the applicant what incentives he had to remain in Australia. He responded that he just tries to care for his family and wants them to all stay together.

24. The Tribunal asked the applicant whether he had any other evidence to support his claim that he intends to stay temporarily in Australia for the purpose of medical treatment, given he has been in Australia since 2006 and has taken many steps to try to remain in Australia, including applying for a permanent visa. The applicant said he did not.

25. The Tribunal put its concerns to the applicant. These included the lack of evidence about him undertaking, or proposing to undertake, medical treatment for his claimed condition, the fact that he has indicated to the Tribunal that he does not intend to seek treatment from a medical doctor in Australia because it is too expensive, and the fact that he is only using traditional Chinese medicine, which is something he could do in China. The Tribunal explained to the applicant that these concerns raised doubts about the genuineness of his application and whether he meets the criteria for the visa. The applicant indicated he had nothing to say in response.

26. The Tribunal also put its concerns to the applicant about his migration history. The Tribunal put to the applicant that he has been in Australia since 2006 and he applied for the Medical Treatment visa in January 2022. He has taken many steps during his time in Australia to try to obtain temporary and permanent visas so he can stay in Australia. The Tribunal put to the applicant that this raised a serious doubt about whether he had a genuine intention to stay temporarily in Australia. The applicant indicated he had nothing to say in response.

27. The Tribunal also put to the applicant that it might find he has incentives to stay away from China, including the fact that he indicated he is not close to his family there and he has been absent for many years, and that he has incentives to remain in Australia, including his wife and children being here, his wife’s work and his intention to do further study. The applicant did not have anything to say in response.

28. Having considered all the applicant’s evidence, the Tribunal does not accept that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

29. The Tribunal has considered the documents provided by the applicant in connection with his visa application, as well as the applicant’s oral evidence to the Tribunal. Apart from the Form 1507 and the pathology request forms, the applicant has not provided any evidence to indicate he has sought or undertaken medical treatment for his condition. The applicant’s oral evidence to the Tribunal is that he only saw [Doctor A], who completed the Form 1507, for that purpose and he has not seen that doctor again, or any other medical practitioner, and he does not intend to do so because it is too expensive. The Tribunal does not accept that the traditional Chinese medicine treatment the applicant claims to be having is the “chronic Hepatitis B surveillance” treatment referred to by [Doctor A] in the Form 1507. Accordingly, based on the applicant’s evidence, the Tribunal finds that the applicant is not undertaking, and does not intend to undertake, medical treatment for his medical condition while he is in Australia. The Tribunal also finds that the applicant does not have a medical treatment plan in place and that he has not provided any probative evidence about when his claimed intended medical treatment might end.

30. Based on the applicant’s migration and visa history, including the fact that he arrived in Australia in 2006 and has not departed since, he has not held a substantive visa since 2008, he has applied unsuccessfully for a permanent visa and several temporary visas and sought review of the refusals of these visas, and he has spent a significant period of time in Australia as an unlawful non-citizen, the Tribunal considers this indicates a strong motivation to remain in Australia on an indefinite, if not permanent, basis. The Tribunal’s concerns are strengthened by the applicant’s lack of incentives to return to China.

31. While it appears that the applicant has complied with the conditions of his past visas (albeit noting that he has spent significant time in Australia without a valid visa), and the evidence does not suggest that the applicant will fail to comply with any conditions that might be attached to a Medical Treatment visa, in the Tribunal’s view these factors do not outweigh its concerns about whether the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

    Findings

32. For the reasons explained above, the Tribunal finds that the applicant intends to remain in Australia indefinitely or permanently and does not genuinely intend to remain in Australia temporarily. The Tribunal finds that the applicant’s visa and migration history, his personal circumstances and his oral evidence to the Tribunal suggests that he intends to remain in Australia indefinitely or permanently. The Tribunal finds that based on the evidence before it, the applicant does not intend to stay temporarily in Australia for the purpose of medical treatment. Accordingly, the Tribunal finds that the applicant does not have a genuine intention to remain in Australia temporarily for the purpose for which the visa is granted, namely, medical treatment.

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

    Conclusion

34. 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

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

    Rachel Da Costa
    Member