2218521 (Migration) - [2023] AATA 4500

2218521 (Migration) [2023] AATA 4500 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2218521
MEMBER:Christine Cody
DATE:31 October 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 31 October 2023 at 7:28am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – no response to s.359(2) invitation – loss of entitlement to a hearing – genuine temporary entrant – intention to comply with visa conditions – No Work condition – No Study condition – No Further Stay condition – other relevant matters – migration history – unlawful non-citizen – applied for permanent residency – length of time already spent in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65. 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215; Schedule 8, Conditions 8101, 8201, 8503
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 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).
The applicant applied for the visa on 16 October 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).
Application to the Department
In support of his application lodged 16 October 2022, the applicant provided an application form, a Form 1507 and other supporting documents referred to below.
Visa application form
According to the visa application form:
·     The applicant is an Indian national who was born in [year].
·     He states that he seeks specialist consultation for Dyspepsia, H Pylorie, PR Bleeding, from [Dr A] at [Hospital 1], with an estimated cost of $3,500.
·     His stay in Australia will be self-funded; his friend and family will support him.
·     He seeks to remain in Australia from “23 December 2022 to 23 December 2022”.
·     He intends to comply with all the conditions of a medical treatment visa if it is granted.
·     He responded “yes” to the question as to whether he has ever not complied with visa conditions or departed outside his authorised period of stay, stating that he had overstayed and had been unlawfully present in Australia. He stated that he had been refused a visa in Australia.
·     He is currently holding a bridging visa E. He is not a citizen of nor does he hold a visa for any other country.
The Form 1507 “Evidence of Intended Medical Treatment Including Consultation” was signed by [Dr B] on 30 August 2021 stating that the applicant has gastro-oesophageal reflux disease (GORD) and the treatment is medication and specialist review.
Supporting documents
Further supporting documents provided with the application form lodged 16 October 2022 are noted below; the references in italics are to the applicant’s description:
His personal statement (undated): This was provided to show that the applicant is a genuine temporary entrant and included submissions about his immigration history and his health conditions. He stated that for 1-2 years he has been having a few health problems. He had rectal bleeding, it was first thought of as haemorrhoids but even after been on regular medicines it had not yet subsided. He has had referrals from doctors, including a specialist on 23 December 2022. The GP has put him on further 6-month medication and has made these referrals, so this is why he is applying for the medical treatment visa. He states:
I am aware of myself overstaying of my visa in the past and refusal I got in my previous application. Due to misjudgements and wrong decisions made by me in the past, I understand I had put myself in the difficult situation. I was misguided a lot. And after all that honestly speaking I was ashamed of going back to my country as I thought I will be considered as a Failure, even though my family never pressurised me for anything. I have had no working rights since the time my Visa got expired and had been going through hard time especially in the pandemic period and that impacted my health a lot. My friends here and family back home are helping me in day-to-day life and for my treatment. I talk to my family (Mother, [and siblings]) and I have been in regular touch with them (See attached Calls records and Message history and family Photos) and they encouraged me to come back to them after getting treated for my medical condition. The estimated time for that is after 23rd December 2022 which will be within a time span of 2-3 weeks after specialists’ consultation.
My future plans after going to India is to join my brother-in-Law Factory which is owned by him. He has agreed to hire me. I will be helping him managing the business and will be getting paid Rs40,000/monthly. I will be living with my mother and staying at my ancestral home which I will be inheriting.
Even though my past actions are not in my favour I am requesting you to consider my current condition and grant me medical visa so that I can get treated for my health without any stress and go back to my country in a healthy condition and start my life afresh.
Family photos: the applicant has produced some photos stating that they show himself (on video) communicating with his family members, including at festival time.
Family call history: a series of WhatsApp calls (stated to be within a WhatsApp group entitled “Family”) with [Name 1], Mom, Big B, Big Bro, [Name 2], [Name 3], [Name 4], [Name 5], Mom, [Name 6], [Name 7], Mummy, [Name 8], [Name 9], [Name 10], [Name 11] (between July - September, apparently 2022). The location and relevance of these people is unspecified).
Family message history: a series of WhatsApp messages apparently in 2022 with some of the people specified above, sharing information/ videos from the internet/personal messages such as “congrats the shining stars [Name 1] and [Name 12]”,” happy birthday” and photos. Some messages were deleted (without explanation).
Passport biopage for the applicant and his bank statement (his shows a minimal balance), and his friend’s payslips.
Referral letters including 3 August 2022 from [Dr C] to [Dr A] referring for further assessment and management and noting that he has had dyspepsia for 1 year. He has H Pylorie and intermittent rectal bleed for the past few months. He is taking one medication. A further letter dated 30 September 2022 requested further management and assessment of GORD and noted the applicant’s H Pylorie is negative; and medication script (September 2022).
The delegate sent a natural justice letter dated 17 October 2022 to the applicant inviting him to provide evidence regarding his intention to be a genuine temporary entrant and his incentive to return to his home country and to depart Australia, noting as follows:
- Departmental Records demonstrate that the applicant entered Australia [in] June 2008 and has not departed since this time.
- On 21 August 2009 the applicant applied for a permanent Protection (Subclass 866) Visa.
- The visa was refused on 17 November 2009 and the applicant sought review at the (then) Refugee Review Tribunal who affirmed the Department's decision.
- The applicant has previously been refused a Medical Treatment (Subclass 602) Visa and also sought review; however the Tribunal (differently constituted) affirmed the Department's decision.
- The applicant has spent almost ten years in Australia as an unlawful non-citizen and
- Departmental systems confirm that the applicant has previously sought ministerial intervention however the case was not considered.
The applicant’s response dated 21 October 2022 included a screenshot of a confirmation of his appointment with [Dr A] on 23 December 2022 as well as documents previously provided with his application form, and an updated personal statement, in which he confirms that he has an appointment with a specialist on 23 December 2022, he says he is being treated for Dyspepsia, H Pylorie and rectal bleeding. He refers to the medical documents attached (which are the same as previously provided; the Tribunal notes that the most recent medical document stated that his H Pylorie test was negative, but that he was being referred for assessment and management of GORD). He rewords his past statement and adds further information as set out below:
I am aware of myself overstaying of my visa in the past and refusal I got in my previous application. I missed my AAT hearing as I was not well and missed their emails. Due to misjudgements and wrong decisions made by me in the past, I understand that I had put myself in the difficult situation. I was misguided a lot. And after all that honestly speaking I was ashamed of going back to my country as I thought I will be considered as a Failure and that was the reason I overstayed my Visa, even though my family never pressurised me for anything. I have had no working rights since the time my Visa got expired and had been going through hard time especially in the pandemic period and that impacted my health more than it already was. I have been abiding all other conditions imposed me during my bridging period and will be abiding every condition imposed if I have been found fulfilling the criteria for medical visa to be granted which My friends here and family back home are helping me in day-to-day life and for my treatment. I talk to my family (Mother, [and siblings]) and I have been in regular touch with them (See attached Calls records and Message history and family Photos) and they encouraged me to come back to them after getting treated for my medical condition as it is getting very hard for me to sit and travel for longer than 10-15 minutes. The estimated time for my treatment completion is after 23rd December 2022 which will be within a time span of 2-3 weeks after specialists’ consultation. I will be leaving for India as soon as my medical treatment is completed.
Delegate’s decision record
On 29 November 2022 the delegate refused to grant the applicant the visa, finding that cl 602.215 was not met because the delegate was not satisfied that the applicant did genuinely intend to stay in Australia for the purpose for which the visa is granted. The delegate found that this clause is a requirement for the applicant to be granted the visa as he did not meet cl 602.212(6) (unfit to depart Australia). In considering cl 602.215, it was stated that Departmental systems were consulted and the amount of time already spent in Australia along with the applicant’s migration history gave rise to concern over the applicant’s intention to be a genuine temporary entrant and his incentive to return to his home country.
The delegate acknowledged that the applicant may be seeking medical treatment in Australia, but stated that he must nevertheless satisfy the decision maker that they intend to comply with visa conditions, be a genuine temporary entrant and that they have incentive to depart Australia if a visa were to be approved. While considering the applicant’s submissions as to his incentives to return home, the delegate gave this little weight after considering the applicant has maintained ongoing residence in Australia, away from their home country, for more than fourteen years.
The delegate gave significant weight to the fact that the applicant has previously demonstrated their intention to seek a permanent visa by applying for a permanent Protection (Subclass 866) Visa in Australia, and despite the visa being refused, the applicant demonstrated significant non-compliance by remaining in Australia as an unlawful citizen for almost ten years.
The delegate acknowledged the applicant's statement in regard to their reason for overstaying their visa and their declaration that that they will abide by the conditions of the Medical Treatment Visa if it is granted. However, when considered in conjunction with the applicant's significant history of non-compliance, the delegate gave this statement little weight.
The delegate found that the applicant’s migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis. Having considered the claims and supporting evidence that the applicant has provided with their application, the delegate found that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.
There are no non-disclosure certificates on the Department’s file.
The Tribunal
On 15 December 2022 the applicant lodged an application for review with the Tribunal and provided a copy of the delegate’s decision record and notification of refusal letter.
On 16 December 2022 the Tribunal sent the applicant a letter acknowledging his application for review, and he was requested to provide any relevant documents, material or written arguments to the Tribunal as soon as possible. He was also advised that if any of his contact details change he should inform the Tribunal immediately, noting that if he does not do so, he may not receive correspondence such as a hearing invitation or other important information and his case could be decided without further notice.
The Tribunal wrote to the applicant on 29 September 2023 advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing in person on 26 October 2023. He was requested to provide documents in support of his case by 19 October 2023 and to provide a Response to the Hearing Invitation within 7 days of receipt of this letter. He did not do so.
The Tribunal sent another letter to the applicant dated 29 September 2023 confirming that not only would the Tribunal be considering cl 602.215, it would also be considering cl 602.212 (whether he meets the permitted purposes of the visa). He was requested to provide information pursuant to s 359(2) of the Act showing:
(1) that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and
(2) how he satisfies the requirements for the permitted purposes of the visa. The letter noted that at the time of application on 16 October 2022, he had sought to remain in Australia until 23 December 2022 (or 2-3 weeks thereafter) to seek medical treatment for himself. The Tribunal requested:
Please provide information as to what medical treatment you have received to date, as well as the details of the medical practitioner who carried out the treatment. There is no evidence before the Tribunal about any current medical treatment you are receiving or seeking. If you rely upon cl.602.212(2), please provide information showing that you meet the criteria namely evidence of: the medical treatment sought and the duration; the arrangements for treatment have been concluded; if the treatment is an organ transplant, evidence that the donor is accompanying you and all requisite arrangements have been concluded in Australia; that you are free of a disease or condition that may be a threat to public health or a danger to the Australian community; arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded; and payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
If you are not seeking to rely upon cl.602.212(2), please provide information to show that you meet one of the alternative criteria in cl.602.212.
The letter advised the applicant that if he did not provide the information by 13 October 2023 he should ask, before 13 October 2023, the Tribunal for an extension of time to provide the information. The letter also informed him that if he did not provide the information by 13 October 2023 and an extension was not granted, he would lose his entitlement to a hearing, and it was specifically noted that a hearing had been listed for 26 October 2023.
The applicant did not provide any information, nor did he request an extension of time to do so; he did not respond to this letter.
On 16 October 2023 the Tribunal wrote to the applicant noting that he had not provided the requested information, the hearing listed for 26 October 2023 is cancelled, and that the Member is entitled to make a decision on the information available, but will delay doing so until after 19 October 2023, and will take into account all information received.
Later that day, the applicant responded to this letter apologising for not responding on time; he said that he misunderstood, due to personal circumstances beyond his control, and thought that the information was due on 19 October 2023 (noting that the documents he was to rely upon were due on 19 October 2023). He stated that he didn’t respond due to an oversight, and he understands the importance of timely communication with the Tribunal. He then stated that he is experiencing personal issues that have significantly affected his physical and mental well-being. These circumstances have made it challenging for him to prepare adequately for the scheduled hearing on its current date. He seeks sufficient time to gather the necessary evidence and focus on his mental and physical health to effectively represent himself during the hearing. He requested an extension of time for the “hearing.
The Tribunal responded on 17 October 2023 as follows:
The Tribunal acknowledges receipt of your email dated 16 October 2023.
The Tribunal notes that you were sent two distinct letters. One was a hearing invitation
inviting you to attend a hearing and requesting that you provide any documents upon
which you sought to rely on by 19 Oct 2023.
The second letter was a letter inviting you to provide specific information showing how
you satisfy clause 602.212, a requirement for the visa you seek. In bold wording at the
end of the letter it was stated as follows:
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may
make a decision on the review without taking any further action to obtain the
information. You will also lose any entitlement you might otherwise have had
under the Migration Act 1958 to appear before us to give evidence and present
arguments.
Note: you have been sent an invitation to attend a scheduled hearing on 26
October 2023. However, if we do not receive a response by the date specified
above or within any extended timeframe, you will lose your right to attend the
scheduled hearing and the hearing will be cancelled. The Tribunal will proceed
to make a decision on the review without taking any further action to obtain your views on the information.
The Tribunal notes that we did not receive a response to the request for information
(nor did we receive a request for an extension of time) by 13 October 2023. Therefore,
on 14 October 2023, s.359C(1) of the Act came into effect and you lost your
entitlement to appear before the Tribunal to give evidence and make arguments.
Under s.363A of the Act, the Tribunal does not have the power to permit a person to
do something that he or she is not entitled to do, so now the Tribunal cannot offer you
a hearing. Unfortunately, the Federal Court has found that the Tribunal does not have
any discretion in these circumstances. The scheduled hearing has been cancelled.
Thus, the Tribunal is unable to grant your request of a postponement of the hearing
date.
As advised, the Tribunal is able to proceed to make a decision on the review on the
information before it now. You state that you currently have some issues, however the
Tribunal notes that you lodged your application for review on 15 December 2022.
In the Tribunal’s acknowledgement letter dated 16 December 2022 you were
requested to tell the Tribunal immediately if your personal circumstances change and
this is relevant to the review of the decision; and you were informed that If you wish to
provide material or written arguments for the Tribunal to consider, you should do so as
soon as possible. In the 10 months since you lodged your application for review you
have provided no update information or documents to the Tribunal.
You have also provided no specific details as to why you have not provided the
information to date, why you did not request an extension of time to provide the
information, nor have you stated what documents or information you seek to provide to
the Tribunal, nor what steps you have taken to obtain documents or information and
when such steps were taken. You have also not advised how much more time you
seek nor the specific reasons why you would require such time.
As set out in the delegate’s decision record you have previously lodged an application
for a medical treatment visa, which was refused by the delegate and then affirmed by
a different Tribunal, before you lodged the current application for a medical treatment
visa. This indicates that you are aware that you have to satisfy requirements to be
granted a medical treatment visa, and that you are responsible for providing
information and documents in support of your case. You have not, however, provided
any such information or documents to the Tribunal to date.
The Tribunal had already agreed to delay making its decision until 19 October 2023.
Although you have not provided any detail to support a further extension of time, the
Tribunal is prepared to delay making its decision for 1 further week until 24 October
2023. The Tribunal will thus delay making its decision until 24 October 2023, 5pm.
You may provide the up-to-date information requested in the letter (a copy is attached
herein for your easy reference) and any other information that you would like the
Tribunal to consider.

No documents were provided to the Tribunal, and no information in response to the Tribunal’s s359(2) letter was provided to the Tribunal to date. Two weeks have passed, yet no response was provided to the Tribunal’s email of 17 October 2023 and no further contact was made with the Tribunal.
Loss of the right to attend a hearing: The s 359(2) invitation was sent to the last address provided in connection with the review and the applicant was advised that, if the information was not provided in writing by 13 October 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal notes that the applicant did not provide the information within the prescribed period and that an extension of time was not requested or granted. In these circumstances, s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear.[1] This is even if he had (unspecified) personal issues or there was an oversight or misunderstanding.
[1] M v MIMA (2006) 155 FCR 333 per Tracey J at [46] and MIMIA v Jing Shan Sun (2005) 146 FCR 498 at [50], also Hasran v MIAC (2010) 183 FCR 413 at [26] confirming the views in M v MIMA and MIMIA v Sun; cf. Khergamwala v MIAC [2007] FMCA 690 (Riley FM, 19 July 2007),however the preponderance of authority has followed MIMIA v Sun and M v MIMA rather than Khergamwala. Also see Giri v MIAC [2011] FMCA 282 (Cameron FM, 28 April 2011) at [21] and [29] upheld on appeal: Giri v MIAC [2011] FCA 928 (Greenwood J, 16 August 2011), and Lokuwithana v MIBP [2017] FCCA 176 (Jones J, 2 February 2017) at [115]–[121] where the Tribunal’s reliance on evidence given at a hearing that it lacked the power to hold resulted in jurisdictional error
The Tribunal is satisfied that s 359C(1) and s 360(2)(c) of the Act apply to the applicant, and pursuant to s 360(3) of the Act the applicant is no longer entitled to appear before it to give evidence and present arguments relating to the issues in his case.[2]
[2] Hasran v MIAC [2010] FCAFC 40
Decision to proceed to a decision: The Tribunal has considered whether it should proceed to a decision on the material available to it or whether it should take any further steps. The Tribunal notes that, after his application was refused by the Department, the applicant has been requested to provide supporting evidence to the Tribunal (as well as specific information), including in December 2022 and September 2023. Even after he did not provide the requested information about his medical treatment, the Tribunal delayed twice in making a decision to allow him to do so, but he did not provide any detailed information as to his medical treatment. While claiming that he has had personal issues affecting his physical and mental well-being, he has not specified what these are nor why they have so affected his ability to provide current relevant information about his medical condition and his intention to stay on a genuine temporary basis for the purpose of medical treatment ever since he lodged his application for review with the Tribunal in December 2022, some 10 months ago. The Tribunal is not satisfied on the evidence before it that the applicant has had personal issues that have made it not possible to provide information to the Tribunal. While he stated that he thought the deadline was 19 October 2023 to provide information and documents to the Tribunal, he has done neither.
The Tribunal is satisfied that he has had the opportunity to present his case and it has decided to proceed to a decision without taking further steps to obtain further information from the applicant.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements in cl 602.212 and cl 602.215.
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. It may be granted for purposes including to obtain medical treatment (other than for surrogate motherhood), to donate an organ, to support another person having medical treatment, for a Papua New Guinean citizen to be treated in Queensland, or where an applicant aged 50 years or over is medically unfit to depart Australia (cl 602.212).
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, which could include Departmental Guidelines. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6).
What is the claimed purpose of the visa application?
As noted above, cl 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the 7 alternative sub-criteria in cl 602.212(2)–(8). These relate to the basis for which the stay in Australia is required.
In his application, the applicant states that he personally would like to obtain medical treatment (cl 602.212(2)). He was asked to advise whether he sought to remain for any other of the criteria, but he did not indicate that he meets any other criteria.
Broadly speaking, cl 602.212(2) requires that:
·     the arrangements for treatment have been concluded;
·     if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia;
·     the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community;
·     arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded; and
·     payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
The Tribunal has considered the initial evidence the applicant provided when his application was lodged (in October 2022) when he was seeking treatment. The applicant relied upon a Form 1507 which was more than 12 months old; he also provided more recent medical documents indicating that he was taking medication and seeking treatment for and investigation of some health conditions. The most recent medical substantive document he provided is more than one year old, in September 2022. The applicant claimed that he was going to have an appointment with a specialist in December 2022; he has not explained why he has not provided any information from that specialist or any other medical professional since that time. The applicant has implied that he cannot take a long flight as he is not able to sit for long, however there is no medical evidence to this effect. He also stated, twice, that he expected to be able to leave (thus not remain in Australia for medical treatment) within a few weeks of his specialist consult in December 2022. He has not done so and has not offered a satisfactory explanation for this.
Thus, no substantive medical information has been provided since September 2022 as to the state of the applicant’s health, the treatment (if any) he has received since lodging his medical treatment visa application, including the frequency of any treatment, the type of treatment received, the progress of the treatment. There is also no current information or evidence of any future proposed medical treatment and the duration. Further, in his application form, the applicant stated that he wanted to receive treatment until 23 December 2022; this date has passed.
There is no current information or evidence that arrangements for treatment have been concluded; that if the treatment currently sought was an organ transplant, evidence that the donor is accompanying him and all requisite arrangements have been concluded in Australia. There is no information or evidence that he is free of a disease or condition that may be a threat to public health or a danger to the Australian community.
Further, while the Tribunal notes the applicant’s assertion that his friend will pay the fees, and that his family will also support him, without having access to information about the proposed costs and expenses (if any) and arrangements made, the Tribunal is not in a position to find that arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded; that payment of such costs will not be a charge on a government or public authority in Australia, or that there is evidence that the relevant government authority has approved payment.
The applicant must satisfy the Tribunal that he meets one of the seven alternative sub-criteria in cl 602.212(2)–(8), which relate to the basis for which the stay in Australia is required. The Tribunal is not satisfied, on the lack of current evidence before it, that the applicant seeks to obtain medical treatment for which arrangements have been concluded to carry out that treatment and to pay for the costs of it or that he otherwise meets the requirements of cl 602.212(2).
Given the above findings, the requirements in cl 602.212(2) are not met.
There is also no evidence before the Tribunal that the applicant seeks to meet, or meets, any of the alternative grounds in cl 602.212. Specifically, the applicant did not claim that he seeks the visa for the purposes of donating an organ for transplant; or to provide support for another person who seeks the visa for medical treatment; or that he is a citizen of Papua New Guinea who resides in Western Province of PNG; or that he is (currently) unfit to depart (as discussed further below).
Given the above findings, the requirements in cl 602.212 are not met.
Does cl 602.215 apply? Is the applicant unfit to depart Australia?
Given the finding that the applicant does not meet any of the permitted purposes for the grant of a Medical Treatment visa, it may not be necessary to consider whether the applicant has a genuine intention to stay temporarily for the visa purpose: cl 602.215. However, for the sake of completeness, and given that this was the reason that the delegate refused to grant the visa, the Tribunal has considered this issue below.
Clause 602.215 – requirement that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted
The cl 602.215 requirement will not apply if the applicant is considered medically unfit to depart Australia; this is defined in cl 602.212(6).
Is the applicant unfit to depart Australia?
Clause 602.212(6) requires that the 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 applicant provided an application form and a copy of his passport biopage indicating that he was born in [year]. He is not 50 years of age (or more). In the circumstances, the applicant cannot meet this definition. Thus, he cannot be considered “unfit to depart Australia” according to the mandatory requirements of cl 602.212(6).
Clause 602.215(1)
The applicant claimed in the application form that he had not complied with his past visas, but in his personal statement he said that he had been abiding all other conditions imposed during his bridging visas. He seemed to be acknowledging that he had overstayed and remained unlawfully, which the Tribunal accepts (and has considered under “other matters”); however there is no evidence before the Tribunal of a specific visa condition he has not complied with. The Tribunal is prepared to accept for the purposes of this decision that he has substantially complied with the conditions of the relevant visas.
Concerning his intention to comply with the conditions to which the Subclass 602 visa would be subject, conditions 8101 and 8201 must be imposed, which prohibit work and limit study or training in Australia to a maximum period of three months, respectively. The applicant had indicated that he would receive financial support from his friend and family and that he intended to comply with the conditions of the visa. He has not indicated that he would study. He has not attended before the Tribunal nor provided any current information as to his intention to comply with these conditions. However, the Tribunal is prepared to accept for the purposes of this decision that he intends to comply with conditions 8101 and 8201.
The Tribunal notes that he may also be subject to condition 8503 (as set out in the application form). The Tribunal is not satisfied that the applicant would abide with the condition of “no further stay”, noting the concerns set out below.
Other relevant matters
The applicant’s application was refused as the delegate was not satisfied that he has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted. The applicant has relied upon the same medical information that was before the delegate, and he has not provided further medical evidence that would inform his intentions despite being given opportunities to do so.
In his response to the delegate’s natural justice letter, the applicant acknowledged his migration history. The Tribunal notes that he said he had made a lot of bad decisions, but he did not specify what they were, nor provide any real detail about this, nor about his claim that he was misguided or was unable to attend a previous hearing. The Tribunal is not satisfied that his adverse migration history is due to the reasons he has claimed. The applicant has lodged numerous applications in Australia[3] including a past unsuccessful medical treatment visa application, and a protection visa application which indicates a fear of returning to India. He now claims he wants to return to India, however his only explanation as to why he no longer has a fear of returning is that he previously did not want to return home because he thought he would be seen as a failure but now things have changed and he intends to return home to the support of his family. The Tribunal is prepared to accept that the applicant has contact with his family as evidenced by the calls and messages exchanged. However, he twice stated in his personal statements to the Department that he intended to go back home to India, to be with his supportive family a few weeks after the specialist appointment on 23 December 2022. It is now 10 months later and he has not returned nor has he provided any independent evidence to support his reason for still being in Australia. The Tribunal is not prepared to accept his assertion that his family, land, work possibilities or any other factor are incentives for him to return to India, nor does it accept that he has current significant issues affecting his health.
[3] As set out in the delegate’s decision record
Further, as noted in the delegate’s decision record, the applicant has been prepared to spend long periods of time unlawfully present in Australia. While the Tribunal accepts that the COVID-19 had a significant effect on many people, it is not satisfied that this can explain the applicant’s continuous unlawful stay in Australia. The Tribunal does not consider that the evidence provided by the applicant, in the circumstances of his longstanding presence in Australia, supports an intention to stay temporarily in Australia for the purposes of medical treatment.
The Tribunal requested information from the applicant showing that he satisfies the requirement of cl 602.215(1) that he has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted (namely medical treatment). He has not responded. The Tribunal notes that he indicated that he only sought to stay until a few weeks after December 2022 however his application for review remained on foot thereafter, with no subsequent evidence provided that he is seeking to stay temporarily in Australia for the purpose for which the visa is granted.
On the evidence before it, the Tribunal is unable to be satisfied that the applicant seeks to remain here temporarily for the purpose for which the visa would be granted (medical treatment) noting also it is not able to be satisfied that he is even currently seeking medical treatment.
Conclusion in relation to cl 602.215
The Tribunal has considered all of the evidence. The medical treatment visa is a temporary visa allowing an applicant to stay in Australia for the purpose of medical treatment in Australia. While giving him the benefit of the doubt and accepting substantial compliance with his last substantive visa and his subsequent bridging visas, and an intention to comply with the study/work conditions of the visa, and while noting that he had previously had medical issues and had consulted doctors, the Tribunal is not satisfied that his purpose in staying in Australia is to seek medical treatment, nor that he intends to leave Australia. It is also not satisfied that if a condition of no further stay was imposed he would comply with this.
The Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted (namely medical treatment), having regard to the considerations set out in cl 602.215(1)(a) to (c).
Given the above findings, cl 602.215 is not met.
CONCLUSION
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Christine Cody
Member

MIGRATION REGULATIONS 1994
SCHEDULE 2
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 (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).