2209403 (Migration)

[2023] AATA 2401

2209403 (Migration) [2023] AATA 2401 (9 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Davin Hartanto (MARN 1577740)

CASE NUMBER:  2209403

MEMBER:Peter Papadopoulos

DATE:9 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.215 of Schedule 2 to the Regulations.

Statement made on 09 June 2023 at 4:23pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – incentives to depart or remain – migration history – previous visitor visa refusal affirmed, applications for ministerial intervention unsuccessful, period as unlawful non-citizen and multiple bridging visas – short period of work in breach of conditions – reliance on agents – intermittent symptoms and established relationship with treatment providers – financial and emotional support from partner in Australia – registered relationship – only child of elderly parents – intention to return to Australia after completing treatment and visiting parents – benefit of doubt – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 which does not allow the identification of an applicant, or their relative or other dependants.

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 9 June 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 30 May 2022. 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. On 9 June 2022, the delegate refused to grant the applicant the visa because they were not satisfied that the applicant met the requirements in cl. 602.215. Clause 602.215 provides:

   (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.

4. The delegate found that the applicant’s circumstances in Australia outweighed any demonstrated incentive to return to her home country and that the applicant did not intend to stay temporarily in Australia. The delegate further found the applicant’s migration history strongly indicated the applicant intended to continue seeking a visa pathway to remain in Australia indefinitely.

5. The applicant lodged this application for review of the delegate’s decision on 28 June 2022. She provided a copy of the delegate’s decision with her application.

6. The applicant appeared before the Tribunal on 18 May 2023 to give evidence and present arguments.

7. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CLAIMS AND EVIDENCE TO THE DEPARTMENT

8. The applicant is [Age] years old and a citizen of [Country 1]. In her medical treatment application, she stated she sought to remain in Australia from 1 June 2022 to 28 October 2022 to obtain medical assessment and treatment from a gynaecologist. In support of her application, the applicant provided the Department with the following documents:

   ·     A letter from [Bank] addressed to the applicant specifying that an account in the applicant’s name held $20,300.19 in credit as of 30 May 2022.

   ·     A mobile transaction history for bank account [Number] showing $25,114.24 available.

   ·     The biodata page of the applicant’s [Country 1] passport (reference [Number]) issued [in] 2013 and which expired [in] 2023.

   ·     Department Form 1507, ‘Evidence of intended medical treatment (includes consultation)’, dated 21 May 2022 and which stated that the medical condition requiring treatment was ‘lower abdominal pains suspected endometriosis’.

9. On 30 May 2022, a representative of the Department wrote to the applicant inviting her to comment on information the department had received. The representative explained that during the assessment of the visa application, Departmental records were consulted and the amount of time the applicant had already spent in Australia raised concerns as to whether the applicant intended to be a genuine temporary entrant in Australia. According to the letter, departmental records showed that:

   ·     The applicant first arrived in Australia [in] January 2015 and has only been absent from Australia for 110 days since.

   ·     The applicant had previously had a Visitor (subclass 600) visa refused and sought review at the Tribunal (differently constituted) which affirmed the decision.

   ·     The applicant had unsuccessfully sought Ministerial intervention in regard to their migration status on two occasions.

   ·     The applicant spent a period of time in Australia as an unlawful non-citizen and has not held a substantive visa since 6 December 2019.

10. The applicant was asked to respond within seven days.

11. On 3 June 2022, the applicant provided the Department with a statutory declaration in response to the Department’s invitation. In summary, the applicant stated:

    ·     She intends to stay in Australia temporarily for her proposed medical treatment and then return to her home country.

    ·     She has never applied for a permanent visa in Australia. She stated she arrived in Australia on a student visa, and that she did study. Prior to the COVID-19 pandemic, she explained that she returned to [Country 1] regularly to visit her parents for a month or two. She has not returned since 2020 due to international travel restrictions.

    ·     She is an only child and that her parents are ageing. She has always cherished her time with her parents and misses them greatly. After receiving medical treatment in Australia, she plans to return to her parents and care for them. She states this is part of her culture and that it is her obligation to care for them.

    ·     She has no family in Australia, no property or any other significant ties to incentivise her to remain here permanently. She said she applied for a tourist visa to remain here lawfully. She stated that she was informed by her lawyer to lodge an application for ministerial intervention. She now believes she was given incorrect advice and wishes she had found better representation.

    ·     She does not feel she can leave now because her health issues are becoming very difficult, debilitating and worrying.

12. On 9 June 2022, a delegate of the Minister proceeded to a decision and refused to grant the applicant the visa on the basis the applicant did not meet cl. 602.215 in Schedule 2 of the Regulations.

    CLAIMS AND EVIDENCE TO THE TRIBUNAL

13. On 28 June 2022, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

14. Between 28 June 2022 and 9 May 2023, the applicant was represented in connection with this review application by a registered migration agent, namely Mr Davin Hartanto (MARN 1577740).

15. On 18 April 2023, the Tribunal wrote to the applicant and invited her to provide:

    ·     information about the medical practitioner and/or medical facility providing her treatment, including their name, address and telephone number;

    ·     information about her arrangements to carry out the medical treatment; and

    ·     any other information which indicates that she had a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

16. On 2 May 2023, the applicant’s representative provided the Tribunal with a letter from the applicant dated 27 April 2023, in which she made the following statements said:

    Unfortunately, I have not booked any further treatment, however I visited a medical facility and they agreed to treat me. I was referred to the specialist last time, and I decided to wait until I get the decision from the Tribunal as and then I can make a booking and start my treatment, because I believe it won’t take only one visit as I already have experience with the same issue in the past.

    For my medical treatment, I feel more comfortable to arrange the treatment here, as the medical system in [Country 1] is not very good at the moment. I can provide more about this at hearing.

17. The applicant appeared before the Tribunal on 18 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner, [A], and the applicant’s employer, [Mr B].  The Tribunal also receive the following documentary evidence from the applicant at hearing:

    ·     Copy of a NSW Relationship Certificate issued in Sydney certifying that the applicant and [A] had registered their relationship on [Date]  pursuant to the requirements specified the Births, Deaths and Marriages Act 1995 (NSW);

    ·     Copy of the applicant’s employment agreement with [Company] dated 16 January 2023;

    ·     Copy of [A]’s employment agreement with [Company] dated 16 January 2023.

18. Following the hearing, the applicant provided to the Tribunal:

    ·     Letter from [Dr C] dated 12 July 2017;

    ·     Letter from [Dr C] dated 1 November 2017;

    ·     Letter from [Dr C] dated 2 May 2018; and

    ·     Letter from [Dr D] dated 22 May 2023.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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.

20. 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.

    Is the applicant unfit to depart Australia?

21. 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.

22. The applicant gave evidence to the Tribunal that she is [Age] years old. This is reflected on the copy of the bio-data page of her passport which she provided to the Department, and the Tribunal accepts this. Accordingly, the requirements in cl 602.212(6) are not met and the requirement in cl. 602.215 does apply.

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

23. In the present case, the visa applicant seeks the visa for the purposes of medical consultation or medical assessment and treatment from a gynaecologist. These details are consistent with the information provided by the applicant at hearing and are supported by the evidence provided to the Tribunal following the hearing. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

    Clause 602.215(1)(a)

24. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa.

25. Department records show the applicant arrived in Australia on 28 January 2015 as the holder of a Student (TU-572) visa which ceased on 10 June 2015. On 10 June 2015, she was granted a Visitor (FA-600) visa before being granted a second Student (TU-572) visa on 15 October 2015. She was further granted a Student (TU-500) visa on 7 June 2017. The last substantive visa held by the applicant was a Work and Holiday (subclass 462) visa which was granted on 5 December 2018 and which ceased on 6 December 2019. She was granted a bridging visa on 19 November 2019 which remain in effect until 1 March 2021. At this time the applicant became an unlawful non-citizen. She remained an unlawful non-citizen until obtaining a new bridging visa on 3 May 2021. She has since held a series of bridging visas and remains on a bridging visa presently.

26. There was no material before the Tribunal to indicate that the applicant did not comply with the conditions attached to her last substantive visa, the Work and Holiday (subclass 462) visa (462 visa) which was granted on 5 December 2018 and ceased on 6 December 2019.  However, at hearing, the applicant indicated that she had worked in a [Work sector] role for an employer in Sydney for a period of 12 months while she held the 462 visa. The following condition 8547 was imposed on that visa:

    The holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary.

27. Concerned as to whether that arrangement might breach condition 8547, the Tribunal inquired further.  The applicant gave evidence that she did not breach the visa condition because she had worked the first 6 months as an employee and the subsequent 6 months as an independent contractor.  According to the following Departmental policy, which applied at the relevant time, such an arrangement appeared to give rise to breach:

    For the purpose of condition 8547, the employer is the business for which the visa holder is directly working - that is, the end user.

    This means a visa holder may be employed by the same labour hire company or contractor for more than 6 months, but may not provide services to the same end user for more than 6 months. A visa holder may, for example, be employed by a State/Territory Department of Education or Department of Health for more than 6 months, but may not provide services to the same school or health care facility for more than 6 months.

    Visa holders cannot stay with any end user (in the same or a different position) beyond 6 months by using different employment agencies, business affiliates or sub-contracting arrangements.

28. In response to the Tribunal’s concern that this arrangement suggested that she had not complied with the visa condition, the applicant stated it was suggested to her by the employer and on that basis thought she was compliant.  The Tribunal finds that the applicant breached this visa condition at some point in 2019.

29. There was also no material before the Tribunal to indicate that the applicant did not comply with the conditions attached to each of the five bridging visas granted to her after her 462 visa ceased on 6 December 2019.  While the applicant was subject to varying degrees of restriction while she held these bridging visas, she claimed that she did not work between December 2019 and May 2022.  Asked how she managed to support herself during that period, the applicant stated that she had relied upon her savings, lived a frugal life and her parents in [Country 1] had also provided some financial support to her during the COVID-19 pandemic. She explained that she was fortunate enough to have her partner, whom she met in November 2019, help pay her rent.  This arrangement was corroborated in the evidence given to the Tribunal by the applicant’s partner. The Tribunal accepts that the applicant complied with the conditions imposed on all her bridging visas that have been in effect since 6 December 2019.

30. Taking into account the numerous substantive and bridging visa conditions which the applicant has been required to comply with since 5 December 2018, and the single instance of non-compliance in 2019 as described above, the Tribunal finds overall that the applicant has substantially complied with the various visa conditions contemplated by subclause 602.215(1)(a).

    Clause 602.215(1)(b)

31. The Tribunal has also 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 8101 (no work), 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 Tribunal accepts the applicant’s evidence that she will be supported financially by her partner in Australia while she holds the visa and finds that she will comply with condition 8101. The Tribunal also accepts the evidence from the applicant’s employer that his business would not employ the applicant while she held the 602 visa.  The Tribunal also accepts the applicant’s evidence that she does not intend to study in Australia as she ceased study some time ago and has no interest in undertaking further study in the foreseeable future. The Tribunal accepts that the applicant will comply with condition 8201.

    Clause 602.215(1)(c)

32. The Tribunal has also considered other matters relevant to assessing the applicant’s intentions.  At 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 reiterated that it is not a permanent visa. The applicant said she understood this.

33. At hearing, the applicant explained the symptoms associated with her condition and the difficulties she had experienced in locating and affording suitable health care providers to diagnose and monitor her condition.  She explained that the severity of her symptoms was intermittent since her initial diagnosis in 2017 and that she was in the process of finalising arrangements to undertake further medical investigations that would enable her gynaecologist to prescribe appropriate treatment management.  Following the hearing, the Tribunal received evidence of steps taken by the applicant towards medical treatment in that regard.  Her partner is aware of her medical condition and very supportive. In addition to supporting the applicant financially, her partner provided and continues to provide emotional support that helps her deal with her medical condition.

34. The applicant told the Tribunal that she wished to visit [Country 1] to see her elderly parents. She explained that she has been missing them terribly and wanting to see them but has been unwilling to do so given the prospect that she may be unable to secure another visa that would enable her to return to Australia in order to complete her medical treatment.  She said that she wanted to finalise her medical treatment in Australia as she had an established relationship with her medical treatment providers in Sydney as well as the support of her partner while she could undertake that treatment.  She said that she did not want to burden her parents with this health issue and expressed a lack of faith in medical treatment providers in [Country 1]. 

1. The Tribunal has considered all the applicant’s written and oral evidence, as well as the oral evidence of [A] and [Mr B]. The Tribunal is sympathetic to the difficult situation in which the applicant finds herself. The Tribunal accepts that the applicant has been seeking appropriate treatment for her gynaecological condition since 2017 and that it had initially appeared to have resolved.  However, when symptoms re-emerged, the applicant has undertaken further investigations and is now on the path towards resolving her medical issues.  She has built a connection with her Australian health care providers and is confident that the treatment she has arranged will assist her in addressing her gynaecological health concerns. The Tribunal accepts the applicant’s evidence that she proposes to complete her treatment in accordance with the advice of her gynaecologist for the purpose of addressing the cause of her intermenstrual bleeding.

2. In considering whether the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment, the Tribunal gives weight to the applicant’s compelling evidence in relation to her desire to see her parents in [Country 1] and her renewed commitment to address her gynaecological condition with the support of her partner in Australia. The Tribunal has no reason to doubt the genuineness of this.

3. The Tribunal notes that while the applicant did work for a short time in Australia in contravention of her visa conditions, she has been honest about how this non-compliance arose and explained the circumstances to the Tribunal’s satisfaction. Presumably, the applicant could find work again relatively easily in contravention of her visa conditions if she was motivated to do so, but the Tribunal accepts that the applicant will not do so given her overall compliance with visa conditions, the undertakings given by [Mr B] at hearing and the financial and emotional support that has been, and will continue to be, provided to the applicant by [A]. 

4. The Tribunal considers that the applicant’s situation is complicated by her wish to remain in Australia with her partner, who provides her with both emotional and financial support, and the fact that her ongoing stay in Australia has been partially determined by the prospect of the applicant being unable to return to Australia once she leaves to visit her parents in [Country 1].

5. Furthermore, the Tribunal has considered the applicant’s immigration history.  She gave evidence to the Tribunal that she had previously travelled on many occasions to [Country 2], [Country 3] and [Country 4] where she had not breached any of her visa conditions or overstayed any period she was permitted to remain in those countries.  The Tribunal accepts this but cannot ignore the following concerning features of the applicant’s Australian immigration history:

   ·     She first arrived in Australia in January 2015. 

   ·     She departed Australia on numerous occasions for various holidays to [Countries 1-4] after she first arrived in Australia but has remained onshore since 6 December 2018.

   ·     She has been previously refused a visitor visa by a delegate and sought review at the Tribunal (differently constituted).  The Tribunal affirmed that delegate decision. She then unsuccessfully sought Ministerial intervention in regard to her migration status on two occasions.

   ·     She has spent a period of time in Australia as an unlawful non-citizen and has not held a substantive visa since 6 December 2019.

6. At hearing, the Tribunal put to the applicant that her Australian immigration history tended to suggest that she had no intention of remaining in Australia on a temporary basis as, for all intents and purposes, it appeared that she was a ‘de facto’ permanent resident of Australia who had for the large part of the past eight years had remained onshore without ever holding a permanent residence visa.  Asked to address the Tribunal’s concern in that regard, the applicant explained that she had entrusted her migration affairs with various representatives and they had advised her to make the various applications and requests and she simply followed their advice.  She further explained that her various representatives had acted unprofessionally as they had forgotten to lodge various applications and that was the reason she became an unlawful non-citizen. She expressed regret and remorse for not taking greater care in managing her Australian immigration affairs but explained that her lack of attention to these matters was partly due to the fact that she had become withdrawn and depressed during the pandemic. 

7. The Tribunal has considered the applicant’s response and is not fully satisfied that its concern has been assuaged.  There is no medical or other evidence before the Tribunal to corroborate the applicant’s claim that she had received poor advice from her previous representatives.  The Tribunal notes the absence of any evidence of the applicant having lodged a complaint about the representative’s misconduct with a professional regulator or any testimony explaining why she chose not to lodge such a complaint.  Furthermore, while the Tribunal is prepared to accept that the applicant, like most people in the Australian community, suffered from mental health issues during the pandemic, there was no documentary evidence to support that claim.  That said, the Tribunal was persuaded by [A]’s evidence in relation to the applicant requiring significant emotional support during their relationship because of her health circumstances, particularly during the pandemic, and is prepared to accept that this significantly impacted upon her ability to properly manage her migration affairs.

8. The Tribunal has taken into account the applicant’s overall immigration history, including her substantial compliance with her visa conditions. It appears overall that the applicant has substantially complied with the conditions of her last held substantive visa and subsequent bridging visas, 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. On balance, taking into account the applicant’s overall immigration history, the Tribunal is prepared to give the applicant the benefit of the doubt and accepts that she intends to remain temporarily in Australia for the purpose of her medical treatment.  Despite past issues with non-compliance, for reasons explained above, the Tribunal does not consider that the applicant’s migration history indicates that she does not now intend to stay temporarily in Australia for the purpose of her medical treatment.  The Tribunal finds that the applicant’s health issues were a significant factor in her immigration non-compliance and that she very much regrets this. The Tribunal does not consider that the applicant’s migration and visa history outweighs her evidence about her genuine intention to return to [Country] after the completion of her medical treatment.

9. Therefore, for the reasons explained above, the Tribunal finds that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment.

10. Given the above findings, cl 602.215 is met.

    Conclusion

11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

    DECISION

12. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

    · cl 602.215 of Schedule 2 to the Regulations.

    Peter Papadopoulos
    Member