2216478 (Migration)

[2023] AATA 1887

2216478 (Migration) [2023] AATA 1887 (16 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2216478

MEMBER:Nathan Goetz

DATE:16 June 2023

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 16 June 2023 at 10:21am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Federal Circuit and Family Court remittal – genuine temporary stay for medical treatment – lengthy stay in Australia – continuing to remain in Australia after medical care – period of unlawful residence – no evidence of medical treatment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.216

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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

   BACKGROUND

2. The applicant identifies as a male citizen of China presently located in Australia.

3. [In] August 2013 the applicant last arrived in Australia holding a visitor visa that was valid [until] November 2013. He has remained in Australia since that time.

4. On 25 October 2019 the applicant applied for the medical treatment visa. 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).

5. On 5 November 2019 the delegate refused to grant the applicant the visa because the applicant did not satisfy cl 602.215 of Schedule 2 to the Regulations.

6. On 22 November 2019 the applicant applied to the Tribunal for merits review of the decision.

7. On 9 December 2021 the Tribunal affirmed the decision to refuse to grant the applicant the medical treatment visa: AAT case 1933242. The applicant applied to the Federal Circuit and Family Court of Australia for judicial review of the Tribunal decision.

8. [In] October 2022 the Court, with the consent of the parties, issued a writ of certiorari quashing the Tribunal decision and a writ of mandamus directing the Tribunal to determine the review according to the law. The order noted that:

   “Clause 602.215(1) of Schedule 2 to the Regulations required the Tribunal to have had regard to three considerations.

   The Minister concedes that the Tribunal fell into jurisdictional error because it failed to take into account two mandatory relevant considerations in cl 602.215(1)(a) and (b).”

9. The review is now being reconsidered by the Tribunal in accordance with the order.

10. On 29 May 2023 the Tribunal wrote to the applicant for two reasons.

11. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 10:00am on 19 June 2023 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The hearing invitation included a ‘Response to hearing invitation’ form that the applicant was directed to complete and return within seven days. He did not do so.

12. The second reason was to request the applicant under s 359(2) of the Act to provide the Tribunal with information in writing by 14 June 2023. The information requested is detailed later in this decision record. The letter warned the applicant that if he did not provide the information requested by the prescribed timeframe or ask the Tribunal for an extension of time to provide the information, the Tribunal hearing would be cancelled, and the Tribunal would make a decision without taking any further steps to allow or enable the applicant to appear at the Tribunal hearing.

13. The applicant did not provide the Tribunal with the information requested in its letter of 29 May 2023. Accordingly, the Tribunal hearing was cancelled, and the Tribunal has made a decision without the applicant providing oral evidence to the Tribunal.

    CRITERIA FOR THE GRANT OF THE VISA

    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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The Tribunal has considered all the evidence relevant to the visa application and the review application. The Tribunal has also considered the applicant’s oral evidence provided at the Tribunal hearing.

15. In the visa application form submitted by the applicant on 25 October 2019, he declared that he was born in Shijiazhuang, Hebei, China in [year] and that the purpose of his stay in Australia was for medical treatment or consultation. He declared that he would be under medical care while in Australia from 25 October 2019 until 25 October 2020 and that the medical treatment would be provided by [Dr A] of [named] Medical Centre, [Suburb 1], New South Wales.

16. Attached to the visa application was Form 1507 Evidence of Intended Medical Treatment, signed by [Dr A] on 17 October 2019. In that form, [Dr A] wrote that the applicant has a recurrent lower back strain with a disc protrusion. The treatment was manual therapy, home exercise program of core stability exercise, and electrical therapy.

17. In the visa application form, the applicant declared that he had previously been refused a protection visa and a medical treatment visa. Immigration records demonstrate the history of those visa applications as follows:

18. On 7 November 2013 the applicant applied for a protection visa. This was refused by a delegate on 16 July 2014. The applicant applied to the Tribunal for merits review of the decision. On 17 July 2015 the Tribunal affirmed the decision to refuse to grant the applicant the protection visa: AAT case 1414153. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. [In] April 2016 the Court dismissed the judicial review.

19. On 24 May 2016 the applicant applied for a medical treatment visa. This was refused by a delegate on 26 May 2016. The applicant applied to the Tribunal for merits review of the decision. On 6 October 2016 the Tribunal affirmed the decision to grant the applicant the medical treatment visa: AAT case 1608755. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. [In] September 2018 the Court dismissed the judicial review.

20. On 26 November 2018, the applicant again applied for a protection visa. A delegate deemed that this application was invalid under s 48 of the Act.

21. In the visa application form, the applicant also declared that he had never been in Australia or any other country and not complied with visa conditions or departed outside an authorised period of stay.

22. In the Tribunal’s 359(2) letter to the applicant on 29 March 2023, the applicant was requested to provide information to explain why he continues to remain in Australia if the purpose of his stay was to be under medical care from 25 October 2019 until 25 October 2020 as claimed in his visa application form.

23. The letter also asked the applicant to provide information, supported by evidence, of the treatment that he had undertaken to address his medical condition since he lodged the visa application on 25 October 2019.

24. As detailed previously, the applicant provided no response to this request for information.

    FINDINGS AND REASONS

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

26. The issue in this case is whether the applicant genuinely intends to stay temporarily for the purpose of medical treatment.

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

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

28. 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.

29. 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.

30. The evidence is that the applicant was born in [year] and that he is in Australia. There is no evidence that the applicant applied for a permanent visa in Australia and that he appears to have met all the criteria for the visa other than the health criteria but has been refused the visa.

31. Therefore, the applicant is required to satisfy cl 602.215 of Schedule 2 to the Regulations because he does not satisfy cl 602.216 of Schedule 2 to the Regulations.

32. In the present case, the visa applicant claims that he meets the requirements for the visa because he seeks medical treatment. Seeking medical treatment is a purpose for which the visa may be granted: cl 602.212 of Schedule 2 to the Regulations.

    Has the applicant complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject?

33. The delegate decision record does not demonstrate that the applicant has not complied with any conditions attached to any visa he has held. A search of the Department records demonstrates that the conditions that attach to his current bridging visa are as follows:

    ·8101 NO WORK

    ·8207 NO STUDY

    ·8401 REPORT AS DIRECTED

    ·8506 NOTIFY NEW ADDRESS

    ·8510 SHOW VALID PASSPORT

34. The applicant’s Immigration records show that there has been an unlawful non-citizen in Australia for periods of time. For example, when the last bridging visa he held expired on 13 May 2022, he was granted another bridging visa on 21 June 2022. This meant that he was an unlawful non-citizen for the period of 14 May 2022 until 20 June 2022. However, there is no evidence of when the applicant applied for the bridging visa that was granted on 21 June 2022.

35. If the applicant applied for the bridging visa while he held the existing visa, but there was a delay in that visa being granted, that cannot be held against the applicant. Conversely, if the applicant had been unlawful for a period of time, had not departed Australia, and only subsequently applied for a bridging visa to regularise his migration status, that period of unlawfulness would be something that the Tribunal would take into account adversely against the applicant. This is because if a person is an unlawful non-citizen in Australia and has not applied for any visa, that person is obligated to leave Australia and a failure to do so would be demonstrative that the applicant had not complied with a visa grant, which requires the applicant to only remain in Australia while that grant was in existence.

36. In the present review, the applicant declared that he had not been in Australia or any other country and not complied with visa conditions or departed outside his authorise period of stay. There is no evidence to undermine this claim. There is no evidence that the applicant’s periods of unlawfulness are a result of the applicant not lodging a visa application until he became an unlawful non-citizen.

37. The absence of any demonstrated non-compliance with conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject, is a factor which should be taken into account in favour of finding that the applicant genuinely intends to stay temporarily in Australia for the purpose of the grant of the visa.

    Does the applicant intend to comply with the conditions to which the Subclass 602 visa would be subject?

38. The delegate decision record does not identify the conditions which would be imposed on the medical treatment visa if granted.

39. As the Tribunal understands it, as the applicant has not previously held a medical treatment visa, any grant of a medical treatment visa must include Conditions 8101 and 8201. These conditions are:

    ·8101 NO WORK

    ·8201 LIMITED STUDY

40. In the visa application form, there was an acknowledgement by the applicant that in the event that Condition 8503 was imposed on the visa, it would limit the ability for the applicant to remain in Australia beyond the authorised period of stay. He indicated that he understood this. The form also asked the applicant if he agreed to not undertake any study or training for more than three months on the visa. The applicant indicated his agreement. There is no evidence that the applicant does not intend to depart from the claim in the form that he would comply with the visa conditions. This is a factor which should be taken into account in favour of finding that the applicant genuinely intends to stay temporarily in Australia for the purpose of the grant of the visa.

    Is there any other relevant matter which demonstrates whether or not the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment?

41. A relevant matter which is evidence of whether or not the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment is absence of any evidence of the applicant’s current medical condition and treatment.

42. The only evidence of the applicant’s medical treatment is the Form 1507 signed by [Dr A] on 17 October 2019. In that form where the doctor wrote that the applicant has a recurrent lower back strain with a disc protrusion and that treatment was manual therapy, home exercise program of core stability exercise, and electrical therapy.

43. There is no evidence that the applicant continues to have a recurrent lower back strain with disc protrusion, and the applicant has provided no evidence to the Tribunal concerning his current medical treatment. For all the Tribunal knows, the applicant never undertook ‘manual therapy, home exercise program of score stability exercise, or electrical therapy. The absence of any corroborative evidence of the applicant’s current medical condition, or current medical treatment (which is the claimed purpose of the stay in Australia) demonstrates that no treatment is being undertaken by the applicant. The absence of current medical treatment demonstrates to the Tribunal that the applicant is staying in Australia for purposes not connected to medical treatment.

44. Another relevant matter is the applicant’s lengthy migration history in Australia. His last arrival in Australia was [in] August 2013, which is almost 10 years ago. The applicant’s continued presence in Australia, with no demonstrated departures from this country [since] August 2013 suggests to the Tribunal that the applicant has a longstanding desire to remain in Australia and given the absence of any corroborative evidence to demonstrate the applicant’s current medical treatment in Australia, suggests to the Tribunal that the applicant’s continued presence in Australia is for reasons not connected to medical treatment.

45. A final relevant matter is that the applicant claimed to meet the requirements of a protection visa, as evidenced by the fact he lodged this type of visa application, and that the granting of this type of visa would give the applicant the opportunity to permanently settle in Australia.

46. Those requirements for the protection visa are that the applicant has a well-founded fear of persecution in China due to his race, religion, nationality, membership of a particular social group, or political opinion, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to China, there is a real risk he will suffer significant harm, or that he is a member of the same family member of such a person. The lodging of a protection visa demonstrates that the applicant claimed he could not return to China.

47. The applicant has provided the Tribunal no evidence that he no longer claims to be a person who has a well-founded fear of persecution in China, or that he no longer faces a real risk of significant harm as a result of his removal from Australia to China. The Tribunal struggles to accept that if the applicant previously lodged a protection visa and provided nothing to the Tribunal to suggest a change in his circumstances, the applicant genuinely intends to stay temporarily in Australia for the purposes of medical treatment.

    CONCLUSION

48. The Tribunal accepts that the considerations in cl 602.215(1)(a) and (b) are capable of suggesting that the applicant genuinely intends to stay temporarily in Australia.

49. However, the considerations in cl 602.215(1)(c) outweigh those considerations to satisfy the Tribunal that the applicant is not genuinely intending to stay temporarily in Australia for medical treatment.

50. The Tribunal concludes that the applicant has lodged the medical treatment visa to maintain ongoing residency in Australia for purposes not connected with medical treatment.

51. For the above reasons, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment.

52. Accordingly, the applicant does not satisfy cl 602.215 of Schedule 2 to the Regulations.

    DECISION

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

    Nathan Goetz
    Member