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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2218521 (Migration)

Details

AGLC: 2218521 (Migration) [2023] AATA 4500
Case: [2023] AATA 4500
Decision Date: 31 October 2023

CaseChat Overview and Summary

This matter concerned an application for a Subclass 602 Medical Treatment (Visitor) visa. The applicant sought to remain in Australia temporarily to obtain medical treatment. The Tribunal was required to determine whether the applicant met the requirements of clauses 602.212 and 602.215 of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant had concluded arrangements for medical treatment in Australia, whether payment for such treatment and associated expenses had been finalised, and whether the applicant genuinely intended to stay temporarily in Australia for the stated purpose. The Tribunal also considered whether the applicant had complied with the conditions of any previous visas and whether there were any other relevant matters, including the applicant's migration history and any personal circumstances affecting their ability to provide necessary information.

The Tribunal reasoned that the applicant had not provided sufficient evidence to satisfy the requirements of the visa. Specifically, the medical documentation provided was outdated, and the applicant had failed to provide information from a specialist appointment that had occurred. Furthermore, the applicant had not adequately explained why they had not departed Australia as previously indicated. Despite multiple invitations to provide further information and evidence, the applicant had not done so, leading the Tribunal to conclude that the applicant had been afforded an opportunity to present their case. The Tribunal affirmed the decision to refuse the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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?

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.Christine CodyMemberMIGRATION REGULATIONS 1994SCHEDULE 2602.215 (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).