2217858 (Migration)
[2023] AATA 3589
•6 October 2023
2217858 (Migration) [2023] AATA 3589 (6 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2217858
MEMBER:Member Nathan Goetz
DATE:6 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) (The Act) in relation to this review that information that would identify the applicant must not be published by the Tribunal.
The Tribunal is satisfied it is in the public interest that this material is not published because it would unreasonably reveal information about the applicant’s previous protection visa application (noting several provisions in the Act restrict publishing material that identifies protection visa applicants: e.g., ss 91X, 431 and 501K).
Statement made on 06 October 2023 at 11:47am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – abiding with the visa conditions – period of unlawful residence – application for permanent visa – nominated treatment period has passed – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.611, 602.612; Schedule 8, Condition 8503Any 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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister for Home Affairs refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
BACKGROUND
On 16 January 2013 the applicant was offshore and was granted a [Student] visa. [In] February 2013 the applicant first arrived in Australia on the Student visa.
On 13 September 2014 the applicant was granted [another] Student visa and on 8 September 2016 she was granted a further [Student] visa.
On 20 February 2018 the applicant applied for a XA-866 Protection Visa and a Bridging visa was granted in association with this application. The Protection visa application was refused on 26 August 2020 and the associated Bridging Visa ceased on 30 September 2020.
From 1 October 2020 to 21 June 2021 the applicant remained in Australia as an unlawful non-citizen.
On 21 June 2021 the applicant was granted a Bridging visa and four subsequent Bridging visas were granted on 9 August 2021, 4 February 2022, 4 July 2022 and 14 October 2022.
On 16 November 2022 the applicant lodged an application for a UB-602 Medical Treatment visa, which was refused on 28 November 2022. On 5 December 2022 the applicant lodged an application with the Tribunal for review of the refusal decision. It is this decision that is the subject of the review.
On 15 September 2023 the Tribunal wrote to the applicant by email and attached two invitations.
The first invitation was a letter inviting the applicant under s 360 of the Act to appear at a Tribunal hearing scheduled for 12 noon on 10 October 2023 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant was directed to complete and return a ‘Response to hearing invitation’ form.
The second invitation was a letter inviting the applicant under s 359(2) of the Act to provide the Tribunal with information by 2 October 2023. The invitation advised the applicant that if she did not provide the Tribunal with the information requested, the Tribunal hearing would be cancelled and the Tribunal would make a decision on the review. The information requested is detailed later in this decision record.
On 27 September 2023 the applicant provided the Tribunal with the completed ‘Response to hearing invitation’ form. In the form, the applicant indicated that she would appear at the Tribunal hearing, but that she had no documents to rely upon at the Tribunal hearing.
By the end of 2 October 2023, the applicant had not provided the Tribunal with the information requested. As a result, the Tribunal hearing was cancelled and the Tribunal made a decision on the review: ss 359C(1), 360(2)(c), 360(3) of the Act.
CRITERIA FOR THE GRANT OF THE VISA
At the time the applicant applied for the visa, 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 refused to grant the applicant the visa on the basis that she did not satisfy cl 602.215 of Schedule 2 to the Regulations. This provides the following:
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.
602.212(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.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to the visa application form completed on 16 November 2022, the applicant is a female citizen of Thailand presently located in Australia. She was born on [date] in Thailand.
The purpose of her stay in medical treatment or consultation in Australia. She indicated that she would be under medical care in Australia from 21 November 2022 until 21 July 2023. She detailed her medical treatment as ‘Dysthymia, Generalised Anxiety Disorder, Sessions every three weeks for 8 months.’
The medical treatment was to be provided by [Doctor A] of [Suburb 1], Victoria. According to the completed Form 1507 by [Doctor B] of [Health Service 1], Melbourne, Victoria, the medical treatment information is ‘Dysfunctional attachment sexuality issues. Foundation for her problems with LGBT relationships. Anxiety and depression. Sessions every 3 weeks for 8 months. Mindfulness and CBT; Drug therapy; stillnox.
The applicant declared that she had a ‘visa refusal history for Australia.’ She declared that she overstayed a visa in Australia and declared that she would not undertake any study or training for more than three months if granted the medical treatment visa. She also acknowledged that if Condition 8503 was imposed on the visa, it would limit her ability to remain in Australia beyond the period of stay authorised by the grant of the medical treatment visa. She also acknowledged that if the visa was granted and ceases and she does not hold another visa to remain in Australia, she will be an unlawful non-citizen under the Act and would be expected to depart Australia.
On 17 November 2022, the delegate wrote to the applicant and noted the applicant’s migration history in Australia, which may suggest that she did not genuinely intend to stay temporarily in Australia. The letter invited the applicant to comment on her migration history, and for her to provide information and / or further evidence to support her claim that she intended to comply with visa conditions, be a genuine temporary entrant in Australia, and demonstrate incentives to depart Australia. The applicant was given 7 days to respond to the request. The applicant did not do so.
On 15 September 2023 the Tribunal wrote to the applicant under s 359(2) of the Act and invited her to provide the Tribunal with the following information:
· Please provide information, supported by documentary evidence, of the treatment you have undertaken since 21 November 2022
· Please provide information about why you have remained in Australia since 21 July 2023 when, according to your visa application form, your medical treatment was to cease on 21 July 2023
· Please provide information, supported by documentary evidence, of the arrangements you have made to return to Thailand.
The applicant did not provide the Tribunal with the information requested, which resulted in the Tribunal hearing being cancelled as discussed above.
FINDINGS AND REASONS
If the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the medical treatment visa is issued, then the correct or preferable decision is to set aside the decision of the delegate refusing to grant the visa and remit the visa application back to the delegate for reconsideration with a permissible direction.
If the Tribunal is not satisfied that applicant genuinely intends to stay temporarily in Australia for the purpose for which the medical treatment visa is issued, then the correct or preferable decision is to affirm the delegate decision.
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?
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.
The evidence is that the applicant is under the age of 50 years of age. Accordingly, the applicant does not satisfy cl 602.212(6) of Schedule 2 to the Regulations. This means that the applicant is required to satisfy cl 602.215 of Schedule 2 to the Regulations.
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
The delegate decision record does not detail the conditions that were imposed on the last substantive visa held by the applicant, nor the conditions that were imposed on any subsequent bridging visa held by the applicant.
The applicant acknowledges that she has overstayed her visa in Australia and thus, has been an unlawful non-citizen. In the Tribunal’s assessment, not holding a current visa that allowed the applicant to remain in Australia lawfully is a breach of visa conditions, because the applicant should not have remained in Australia if she did not hold a visa.
The fact that the applicant has previously remained in Australia without holding a valid visa to do so is a factor that the Tribunal takes into account in considering that the applicant does not genuinely intend to stay temporarily in Australia for the purpose of medical treatment.
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
The delegate decision record does not detail the conditions that would be imposed on the medical treatment visa if granted.
Conditions to be imposed on a medical treatment visa are contained in cl 602.6 of Schedule 2 to the Regulations. This provides the following:
602.6--Conditions
602.611
(1) If:
(a) the applicant holds a Subclass 602 visa on the basis of satisfying the primary criteria; and
(b) the requirements described in subclause 602.212(7) have been met in relation to the applicant;
Condition 8201 must be imposed.
(2) If:
(a) the applicant holds a Subclass 602 visa on the basis of satisfying the secondary criteria; and
(b) the requirements described in clause 602.314 have been met in relation to the applicant;
Condition 8201 must be imposed.
(3) In any other case, conditions 8101 and 8201 must be imposed.
602.612
Condition 8503 may be imposed.
The applicant claims in the medical treatment visa application form that she seeks the visa on the basis of medical treatment. She is therefore seeking to satisfy the primary grant for the visa: cl 602.212 of Schedule 2 to the Regulations.
The applicant has not claimed to suffer financial hardship as a result of changes in her circumstances after entering Australia, meaning that she does not satisfy cl 602.212(7) of Schedule 2 to the Regulations. Accordingly, the applicant does not satisfy cl 602.611(1) of Schedule 2 to the Regulations, nor cl 602.611(2) of Schedule 2 to the Regulations.
The applicant therefore falls to have conditions imposed pursuant to cl 602.611(3) of Schedule 2 to the Regulations, as well as the discretionary condition to be imposed under cl 602.612 of Schedule 2 to the Regulations.
In the circumstances of this review, the Tribunal is satisfied that the medical treatment visa, if granted to the applicant, would contain the following conditions:
8101: The holder must not engage in work in Australia
8201: While in Australia, the holder must not engage, for more than 3 months, in any studies or training. This condition must be imposed because the applicant is over 18 years of age, per Schedule 8 of the Regulations.
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 applicant agreed in the visa application form that she would not engage in any studies or training outside the limited period allowed. The Tribunal is satisfied that there is no evidence to suggest that the applicant is currently studying or training, and there is no evidence that the applicant will study or train while on the medical treatment visa. The Tribunal also accepts that there is no evidence of the applicant currently working, or will work if granted the medical treatment visa.
The Tribunal accepts that this intention to comply with those conditions is a factor that should be taken into account in finding that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment.
The Tribunal does not consider that Condition 8503 lends itself to an assessment of the applicant’s intention to comply with conditions, because Condition 8503 only acts to limit the ability of the applicant to apply for visas.
Any other relevant matter
The Tribunal has considered the limited evidence concerning the applicant’s medical treatment in Australia. Apart from the Form 1507 completed by [Doctor B] almost 12 months ago, there is no evidence that the applicant has undertaken any medical treatment since lodging the visa application. The Tribunal is satisfied that if there was any evidence of the medical treatment the applicant had undertaken since lodging the visa application, she would have provided it to the Tribunal in accordance with the Tribunal’s request for information. The Tribunal is not satisfied that the applicant has undertaken any medical treatment but has remained in Australia. This suggests that the applicant is not remaining in Australia for medical treatment.
The Tribunal has considered the applicant’s migration history, and timing of the medical treatment visa application. The applicant has remained in Australia since [February] 2013 and never departed. She has lodged a series of visas in an attempt to remain in Australia and specifically concerning her protection visa application, suggests that she cannot return to Thailand because a protection visa is for people who claim that they will suffer either serious or significant harm in their home country. In the Tribunal’s assessment, given the lack of evidence about medical treatment, it is highly likely that the applicant applied for the medical treatment visa to remain in Australia as an alternative to the residency that would have been provided to her in the event that the protection visa was granted.
The Tribunal has considered the lack of information provided by the applicant concerning her arrangements to return to Thailand. The applicant claimed that she would be under medical care in Australia until the middle of 2023 but provided the Tribunal with no explanation about why she remained in Australia after that date, and provided the Tribunal with no information to demonstrate that she had made arrangements to depart Australia. The Tribunal is satisfied that the applicant remaining in Australia after the period she nominated as when her medical treatment would cease, and the absence of evidence concerning her arrangements to return to Thailand, demonstrate that the applicant is remaining in Australia for reasons not connected to medical treatment and that she has no plans to depart Australia.
CONCLUSION
Considering all the factors required in cl 602.215 of Schedule 2 to the Regulations in determining whether the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment, the Tribunal concludes that the facts as the Tribunal has found them relating to cl 602.215(a) and (c) outweigh the facts as the Tribunal has found them relating to cl 602.215(b).
The Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the medical treatment visa would be issued.
Therefore, the applicant does not satisfy cl 602.215 of Schedule 2 to the Regulations.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Nathan Goetz
Member
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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