2213165 (Migration)

[2023] AATA 2392

2213165 (Migration) [2023] AATA 2392 (8 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2213165

MEMBER:Tania Flood

DATE:8 June 2023

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 08 June 2023 at 2:25pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – migration history – multiple visas and long residence – application made after overstay, cancellation of one previous visa after incorrect information provided and refusal of another – mental health treatment – counselling sessions and medication – minimal attendance at sessions – proposed treatment period passed – availability of treatment in home country – family in home country and no family or work in Australia – decision under review affirmed

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.

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 (the Department) on 19 August 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 6 July 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. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted (cl 602.215).

4. The applicant appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   Migration History

6. The applicant commenced a Working Holiday (TZ 417) visa application on 22 March 2013 which was granted on 2 April 2013. The applicant arrived in Australia [in] April 2013.  She departed Australia [in] September 2013 and returned [in] October 2013. 

7. The applicant applied for a Working Holiday visa on 18 March 2014 which was granted on 21 March 2014.  She departed Australia [in] April 2015.

8. On 15 May 2015 the applicant was granted a Student visa (TU-570) and she returned to Australia [in] July 2015. However, the applicant changed the course and then did not commence it on 28 August 2015. The applicant was granted a deferral on compassionate grounds on 16 December 2016.  She departed Australia [in] December 2015 and returned [in] January 2016. 

9. The applicant departed and returned to Australia a further two times and on 14 May 2018 she was granted a UD 601 visa and returned to Australia [in] June 2018.  She departed [in] August 2018. 

10. The applicant then applied for a Working Holiday visa on 30 August 2018 which was granted on 19 September 2018.   She returned to Australia [in] September 2018.  On 18 August 2019, the applicant applied for a second Working Holiday visa. This was granted on the same day.

11. On 28 November 2019, the applicant’s Working Holiday visa was cancelled under s109 due to the provision of incorrect information.  The applicant unsuccessfully sought review of the cancellation decision by the Tribunal.

12. The applicant applied for a Protection (XA 866) visa on 31 March 2021. The applicant was refused the Protection visa on 27 January 2022. Review of the Protection visa commenced on 2 March 2022; however, the Tribunal found it did not have jurisdiction to review the matter on 1 June 2022 for reason that the time frame for application was not met.

13. The applicant commenced a Medical Treatment (Class UB) visa application on 6 July 2022. In her application, the applicant stated that she had overstayed a previous Australian visa and that she had been previously refused an Australian visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant satisfies clause 602.215 of Schedule 2 of the Migration Regulations.

15. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6) which requires that an applicant:

    ·is in Australia

    ·has turned 50

    ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

    ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

16. The applicant is in Australia and according to the available evidence she is thirty-two years of age. Given this, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 applies.

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

17. In her application for a Medical Treatment visa, the applicant stated that she is a citizen of Taiwan.  She noted her date of birth as [Date].  She stated that she would like to remain in Australia to seek medical treatment between 10 July and 10 September 2022. She stated that her treatment costs were estimated to be around $1,350 including an initial consultation, prescriptions and monthly visits to her treating doctor.

18. By way of form 1507, the applicant stated that her intended medical treatment was to attend counselling sessions with a psychologist and follow a course of anti-depressant medication for her major depression disorder condition.

19. The Department wrote to the applicant in a natural justice letter on 12 July 2022. The letter explained the concerns the delegate had regarding the applicant’s intention to be a genuine temporary entrant, her incentive to depart Australia and her migration history.

20. In her response to the natural justice letter, the applicant alleged that she was the victim of an assault in 2019. Consequently, she commenced taking medication in order to sleep, stating that she gradually increased the dosage that she took over time.  She requested that she be granted permission to stay in Australia temporarily to cure her mental illness before returning home.

21. When the applicant appeared before the Tribunal she stated that she was formally known by the name [Former name] prior to legally changing her name to [the applicant].

22. The applicant stated she has no family living in Australia.  Her parents and [siblings] are living in Taiwan.  She has monthly contact with her family in Taiwan.

23. The applicant stated that she is not currently working due to visa conditions but previously she worked from 2009 to 2022 and is living off her savings.

24. The applicant confirmed that she previously held Working Holiday and Student visas.  She said she applied unsuccessfully for a Protection visa but that the application was made through an unscrupulous agent who did not inform her about the type of visa she had applied for.  She stated that she did not fear for her safety in Taiwan when that application was made.

25. The Tribunal asked the applicant why she needs to remain in Australia for medical treatment given the end date requested in her application for the visa was 10 September 2022.  She replied that she cannot sleep at night and her doctor has prescribed medication for anxiety.  She stated that she consulted a psychologist twice in the past who also prescribed anxiety medication.  She said the last time she consulted the psychologist was in around October 2022.

26. The Tribunal put it to the applicant that it appears she could obtain medication for the treatment of anxiety in her own country.  She replied that she could but noted that her parents do not know about her need to take such medication.  When discussing this further, she agreed her parents would not necessarily need to know about this.

27. The Tribunal discussed with the applicant her migration history and indicated that it appears her motivation for remaining in Australia is the reason why she is seeking to obtain a Medical Treatment visa.  She declined to comment.

28. The Tribunal discussed with the applicant information contained in the delegates decision which indicates she had a Working Holiday visa cancelled because she provided incorrect information.  The applicant agreed that the visa was cancelled for reason of her not declaring the use of two different names.

29. The Tribunal put it to the applicant that providing incorrect information to the Department is a very serious matter and her willingness to do that could raise doubts about her credibility and her stated intention to want to remain in Australia temporarily for medical treatment.  The applicant agreed with the Tribunal’s observation.

30. When asked to explain her longer-term intentions regarding her presence in Australia the applicant replied that she is not sure.

31. The Tribunal notes the applicant’s migration history outlined above including the length of time she has spent living in Australia since her first arrival, an unsuccessful attempt to obtain a permanent visa and the cancellation of a Working Holiday visa for reason of the provision of incorrect information.  In the Tribunal’s opinion this history is cause for concern and indicates that the applicant is highly motivated to remain in Australia including through unlawful means if necessary.  The applicant has not put forward any material to counter the implication of the history set out above.

32. The Tribunal is prepared to accept that the applicant is taking medication prescribed for anxiety.  Whereas she requested to remain in Australia to undergo psychological counselling her evidence is that she only ever attended two sessions with a psychologist, the last time being around October 2022.  She did not claim nor produce any medical evidence which supports she needs or is planning further psychological treatment other than taking the medication which is prescribed to her.  Based on the available evidence the Tribunal is not satisfied that a defined medical treatment plan is in place.   Nor does the Tribunal consider the applicant’s condition is life threatening or that the applicant could not obtain medication to control her anxiety in Taiwan. 

33. The applicant provided no response to the Tribunal’s observation during the hearing that she appears to be using the Medical Treatment visa pathway as a means of prolonging her stay in Australia and when asked to explain her intentions for the future she replied that she is not sure. 

34. Having had regard to the applicant’s migration history, the lack of evidence to support the existence of a medical treatment plan and her inability to articulate her future intentions beyond any possible further visa grant the Tribunal has concluded that she is indeed seeking to use the Medical Treatment visa pathway as a means of prolonging her stay in Australia and not for the purpose for which the visa is granted. 

35. For the above reasons, the Tribunal is not satisfied that the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted.

36. Given the above findings, the requirements in cl 602.215 are not met.

37. 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

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

    Tania Flood
    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).