2305286 (Migration)

[2024] AATA 2829

2305286 (Migration) [2024] AATA 2829 (16 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2305286

MEMBER:L Symons

DATE:16 May 2024

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 16 May 2024 at 8:49am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – no response to hearing invitation or appearance at hearing – genuine temporary stay for purpose of visa – no claim or evidence of being medically unfit to depart –last substantive visa cancelled – application for protection visa unsuccessful, bridging visas and period as unlawful non-citizen – no response to tribunal’s communications – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 57, 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(6), 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 March 2023 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Home Affairs (the Department) for the visa on 21 February 2023. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 14 April 2024, the applicant applied to the Tribunal for a review of that decision.  

4. On 11 April 2024, the Tribunal wrote to the applicant and advised him that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited him to appear before the Tribunal on 15 May 2024 at 2.00pm via video to give evidence and present arguments relating to the issues arising in his case. The letter indicated that if he did not appear at the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before it. This letter was sent to him to the email address he nominated for correspondence on 11 April 2024. This email was not returned to the Tribunal undelivered.

5. On 1 May 2024, the Tribunal wrote to the applicant and invited him to a test run on 9 May 2024 at 9.30am. The purpose of this test was to ensure that he had no difficulties with the technology and the hearing scheduled on 15 May 2024 could proceed smoothly. The invitation was sent to him by email on 1 May 2024 to the email address he provided. He did not attend the test.

6. On 8 May 2024 and 14 May 2024, the Tribunal sent the applicant SMS reminders of the hearing to his mobile telephone and provided him with a number to contact the Tribunal if he had any questions. There is no indication that these two SMS messages were not delivered. The applicant did not contact the Tribunal. He was not represented in relation to the review.

7. The applicant did not attend the hearing on 15 May 2024. An officer of the Tribunal attempted to contact him by telephone on two occasions at 2.03pm and 2.07pm but there was no response. The hearing officer waited for the applicant on the MS Teams link from 1.45pm to 2.30pm but he did not connect to the link. He did not contact the Tribunal to explain his non-attendance or to request a postponement of the hearing. The hearing was cancelled at 2.30pm. 

8. In these circumstances, the Tribunal will proceed to make a decision on the review based on the documentary evidence before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

10. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant satisfies the requirements in cl.602.215.

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

11. 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.

12. The evidence before the Tribunal indicates that the applicant was in Australia at the time that the application for a Medical Treatment visa was filed on 21 February 2023 and has remained in Australia since then. Therefore, the Tribunal finds that he meets the requirements of cl.602.212(6)(a).

13. The evidence before the Tribunal indicates that the applicant was born on [Date] and is currently [Age] years old. Accordingly, he had not turned 50 years of age at the time of application. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(b).

14. There is no evidence before the Tribunal to indicate that the applicant 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. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(c).

15. The applicant has not claimed that he is medically unfit to depart Australia or provided any medical evidence to that effect. There is no evidence before the Tribunal from a Medical Officer of the Commonwealth. The Tribunal is accordingly not satisfied that he 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. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(d).

16. Given the above findings, the requirements in cl 602.212(6) are not met and, accordingly, the requirement in cl 602.215 does apply.

17. In considering whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal has had regard to whether he has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by him was subject. He has filed with the Tribunal a copy of the Department’s Decision Record dated 29 March 2023. It indicates that he first arrived in Australia [in] July 2017 as the holder of a Working Holiday (Class TZ) (Subclass 417) visa. He subsequently departed Australia [in] March 2018 and then re-entered the country [in] April 2018. On 4 July 2018, he was granted a second Working Holiday (Class TZ) (Subclass 417) visa. This visa was cancelled on 10 June 2019.

18. The Department’s Decision Record dated 29 March 2023 indicates that on 2 June 2019 the applicant applied for a Protection (Class XA) (Subclass 886) visa. This application was refused by the Department on 15 June 2020. He lodged an application for review with the Tribunal on 11 July 2020. The Tribunal (differently constituted) affirmed the delegate’s decision on 5 January 2022. On 21 February 2023, he applied for a Medical Treatment visa and his application was refused by the Department on 29 March 2023. This decision is now the subject of this review. Since his last substantive visa was cancelled on 10 June 2019, he has remained in Australia on a succession of Bridging visas and has also spent time in Australia as an unlawful non-citizen.

19. On 23 February 2023, the delegate wrote to the applicant, pursuant to s.57 of the Act, invited him to comment on his above immigration history and provide, within 7 days, evidence that he is a genuine visitor and that he has incentives to depart Australia if granted a visa. He did not respond. 

20. In view of the above, the Tribunal is not satisfied that the applicant has complied substantially with the conditions to which the last substantive visa held by him was subject as his visa was cancelled on 10 June 2019. The Tribunal is also not satisfied that he has complied substantially with the conditions to which any subsequent Bridging visa held by him was subject as the Department’s Decision Record dated 29 March 2023 indicates that he has spent time in Australia as an unlawful non-citizen. He did not dispute this when given an opportunity to do so.

21. In considering the applicant’s intention to comply with the conditions to which the subclass 602 Medical Treatment visa would be subject, the Tribunal notes that conditions 8101 (must not engage in work in Australia) and 8201 (must not engage in any studies or training for more than 3 months) are mandatory conditions in the circumstances of this case. In his application for the Medical Treatment visa, he indicated that he has savings to cover his expenses in Australia. The Tribunal notes that he has been living in Australia since [April] 2018.

22. The applicant has not provided the Tribunal with any documentary evidence in relation to his current financial circumstances and his capacity to pay for his treatment and living expenses in Australia. The Tribunal is accordingly not satisfied that he has the financial capacity to support himself in Australia without working in breach of condition 8101 of his visa. The Tribunal is therefore not satisfied that it is his intention to comply with the conditions to which the subclass 602 Medical Treatment visa would be subject.

23. The Tribunal has considered other relevant matters such as the applicant’s lengthy immigration history in Australia. He has not departed Australia since his arrival here [in] April 2018. He has applied for a permanent visa and did not depart Australia when his application was unsuccessful. This indicates a strong desire to live here permanently. His lack of engagement with the Tribunal and failure to attend the hearing leads the Tribunal to the conclusion that his application for a Medical Treatment visa was made for the purpose of maintaining residence in Australia.

24. In view of the above, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.215.

    CONCLUSION

25. 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

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

    L Symons
    Member

    Attachments

    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.