2305605 (Migration)

[2024] AATA 2079

2305605 (Migration) [2024] AATA 2079 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2305605

MEMBER:Member Nathan Goetz

DATE:29 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision dated 3 April 2023 refusing 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Migration Act 1958 (Cth) (the Act) in relation to this review that information that would identify the applicant must not be published by the Tribunal.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 a number of provisions in the Act restrict publishing material that identifies protection visa applicants: e.g. ss 91X, 431 and 501K).

Statement made on 29 April 2024 at 2:58pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine intention to stay temporarily for purposes of visa and compliance with conditions – migration history – periods as unlawful non-citizen and with bridging visas – previous substantive visa applications, including multiple applications for medical treatment visas, refused and affirmed – passport expired – debt to commonwealth and wife and child in Australia – no evidence of past treatment provided – no information provided in response to tribunal’s invitation and hearing cancelled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(1), (2)(c), (3)
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 merits review of a decision made s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

   BACKGROUND

2. The applicant is a male citizen of Malaysia presently located in Australia.

   Previous Australian substantive visa application history

3. On 9 March 2015 the applicant was offshore and granted an electronic travel authority visa to travel to Australia. On 12 March 2015 the applicant arrived in Australia holding this visa, which was valid until 12 June 2015.

4. On 17 November 2015 the applicant applied for a protection visa. On 21 March 2016 a delegate refused to grant the applicant the protection via. On 31 March 2016 the applicant applied to the Tribunal for merits review of the decision. On 15 February 2017 the Tribunal affirmed the decision refusing to grant the applicant the protection visa: AAT 1604432. On 20 March 2017 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. On 2 August 2019 the Court dismissed the judicial review.

5. On 12 December 2018 the applicant applied for a medical treatment visa. On 20 December 2018 a delegate refused to grant the medical treatment visa. On 8 January 2019 the applicant applied to the Tribunal for merits review of the decision. On 30 March 2021 the Tribunal affirmed the decision refusing to grant the applicant the medical treatment visa: AAT 1900488.

6. On 28 April 2021 the applicant applied for a medical treatment visa. On 6 May 2021 a delegate refused to grant the medical treatment visa.

7. On 26 May 2021 the applicant applied for a medical treatment visa. On 31 August 2021 a delegate refused to grant the medical treatment visa.

8. On 4 October 2021 the applicant applied for a medical treatment visa. On 1 December 2021 a delegate refused to grant the medical treatment visa. On 16 December 2021 the applicant applied to the Tribunal for merits review of the decision. On 8 December 2022 the Tribunal affirmed the decision refusing to grant the applicant the medical treatment visa: AAT 2119283.

9. On 12 January 2023 the applicant applied for a medical treatment visa. On 13 January 2023 a delegate refused to grant the medical treatment visa.

   Previous bridging visa grants and periods of unlawfulness in Australia

10. When the applicant’s electronic travel authority visa expired on 12 June 2015, the applicant became an unlawful non-citizen in Australia. The applicant remained an unlawful non-citizen until 18 November 2015, when he was granted a bridging visa to temporarily regularise his migration status. The applicant held a succession of bridging visas maintaining his lawful status until 22 March 2017 when the bridging visa ceased. He then became an unlawful non-citizen in Australia. He remained an unlawful non-citizen until 7 April 2017 when he was granted a bridging visa to temporarily regularise his migration status. He has been granted a succession of bridging visas since that time and has maintained his lawful status. He continues to hold a bridging visa.

    Current visa application and criteria for the visa

11. On 17 December 2023 the applicant applied for the medical treatment that is the subject of this decision record. At the time of visa application, 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).

12. On 3 April 2023 the delegate refused to grant the applicant the visa on the basis that he did not satisfy cl 602.215 of Schedule 2 to the Regulations. This clause 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.

13. On 21 April 2023 the applicant applied to the Tribunal for merits review of the decision refusing to grant the applicant the medical treatment visa. It is this decision that is the subject of this decision record.

14. On 11 April 2024 the Tribunal wrote to the applicant for two reasons.

15. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 1:30pm on 2 May 2024 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal determined that a Tribunal hearing conducted via MS Teams was appropriate in all the circumstances. Included with the hearing invitation was a ‘Response to hearing invitation form’ that the applicant was directed to complete and return within 7 days.

16. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information in writing. The information requested is detailed later in this decision record. The letter advised the applicant that if he did not provide the Tribunal with the information it requested by 26 April 2024, the Tribunal hearing would be cancelled, and the Tribunal would make a decision on the review without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing.

17. On 23 April 2024 the applicant returned the ‘Response to hearing invitation form’ and indicated that he would appear at the Tribunal hearing scheduled for 2 May 2024. He indicated in that form that did not have any documents or submissions to provide the Tribunal.

18. By 26 April 2024, the applicant had not provided the Tribunal with the information it requested under s 359(2) of the Act. Accordingly, the Tribunal hearing was cancelled, and the Tribunal made a decision on the review because in circumstances where an applicant has not provided the Tribunal with information it requested, there is no power for the Tribunal to hold a Tribunal hearing: ss 359C(1), 360(2)(c), 360(3) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the review is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is issued: cl 602.215.

20. If the Tribunal finds that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa would be issued, the correct or preferable decision is to set aside the decision of the delegate and remit the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies cl 602.215.

21. If the Tribunal finds that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is issued, then the correct or preferable decision is to affirm the decision of the delegate refusing to grant the visa.

22. The Tribunal has considered all the evidence provided in support of the visa application and the review application.

23. According to the visa application form, the applicant was born on [Date] in Terengganu, Malaysia. He indicated in the form that he had a Malaysian passport issued in his name which was expiring [in] 2023.

24. In the visa application form, the applicant declared that the purpose of his stay in Australia was for medical treatment or consultation. The applicant declared that he would be under medical care in Australia from 17 February 2023 until 17 February 2024 and that the care would be provided by [Dr A] of [Medical Centre], [Suburb], Victoria. He identified that his spouse/de facto partner and child were also presently located in Australia.

25. Attached to the visa application was a completed Form 1507 – Evidence of intended medical treatment. The form was signed on 5 December 2022 by [Dr A] and identified that the applicant’s medical condition requiring treatment is anxiety and depression. The treatment information was that the applicant was referred to see a psychologist under a mental health care plan on 19 August 2021. The applicant detailed that funding for his stay would be self-funded through ‘savings and wife support.’

26. On 17 February 2023 the delegate wrote to the applicant and noted that the applicant was required to satisfy cl 602.215. The letter detailed the applicant’s Australian migration history, noting that the applicant’s last substantive visa expired almost 8 years ago, and the applicant had remained in Australia on temporary visas since that time. The letter noted that the applicant owed a debt to the Commonwealth (presumably in relation to the unsuccessful review of the decision to refuse to grant him a protection visa) and that he had a wife and child in Australia, and there was no information regarding the applicant’s strength of ties to Malaysia, such as family relationships, financial holdings, or ownership of assets. The letter invited the applicant to provide comment on these matters, and to provide documentary evidence to substantiate claims that he genuinely intended to leave Australia at the end of the medical treatment plan. The applicant was given 7 days to respond to the letter. He did not do so.

27. On 11 April 2024 the Tribunal wrote to the applicant under s 359(2) of the Act and requested that he provide the Tribunal with information in writing by 26 April 2024. The letter detailed the following:

    ·     In your visa application form, you wrote that you would be under medical care in Australia from 17 February 2023 until 17 February 2024. You have remained in Australia after 17 February 2024. Please provide information about why you have remained in Australia after 17 February 2024 if your medical treatment ceased on 17 February 2024.

    ·     In your visa application form, you wrote that your medical treatment will be provided by [Dr A] of [Medical Centre], [Suburb], Victoria. Please provide information, supported by documentary evidence, of the treatment you undertook with [Dr A] and provide information, supported by documentary evidence, to demonstrate payment of the treatment costs.

    ·     You last arrived in Australia on 12 March 2015 and have not departed since that time. Please provide information about why you have not departed Australia since your last arrival.

    ·     Please provide information, supported by documentary evidence, of arrangements you have made to depart Australia.

    ·     Please provide information, supported by documentary evidence, that you hold a valid passport for your country of citizenship.

28. As detailed previously, the applicant did not provide the Tribunal with the information it requested.

    FINDINGS AND REASONS

29. 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?

30. 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).

31. The applicant does not satisfy cl 602.212(6) because the applicant has not turned 50 years of age. Therefore, he is required to satisfy cl 602.215.

    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

32. As far as the Tribunal is aware, there is no evidence of the applicant not complying with any condition that was imposed on the last substantive visa granted to the applicant, or any subsequent bridging visa granted to the applicant. The Tribunal thinks it likely if there was such evidence, the delegate would have addressed this in the decision record.

33. The past compliance by the applicant with visa conditions is a factor that the Tribunal takes into account in favour of finding that he genuinely intends to stay temporarily in Australia for the purpose of medical treatment.

    Whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject

34. The delegate decision record does not identify the conditions that would be imposed in the event that the medical treatment visa is granted. As the Tribunal understands the operation of cl 602.6, the conditions that would be imposed on the medical treatment visa if granted as are follows:

    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

35. There was no declaration in the visa application form that the applicant understood he would not be permitted to work on the medical treatment visa if granted, nor was there a claim by the applicant that he would not work on the visitor visa. The Tribunal cannot be satisfied in the absence of positive evidence that the applicant understands he cannot work and agrees to not work that he would comply with Condition 8101. There was positive evidence in the visa application for that the applicant agreed to not undertake any study or training for more than three months. However, that declaration was made in April 2023, and there is no current evidence that the applicant continues to agree to not engage in any study or training for more than three months as required by Condition 8201.

36. The absence of current evidence that the applicant intends to comply with the conditions that would attach to the medical treatment visa if granted is a factor that the Tribunal takes into account in finding that the applicant does not genuinely intend to stay temporarily in Australia for the purpose of medical treatment.

    Any other relevant matter

37. The Tribunal has considered the applicant’s lengthy migration history in Australia, as well as the types of visas that the applicant has applied for.

38. The evidence is that the applicant came to Australia on a temporary visa, namely the electronic travel authority visa. This was a temporary visa that was valid until 12 June 2015.

39. However, the applicant did not leave Australia at the conclusion of the visa, and if fact remained in Australia as an unlawful non-citizen. The Tribunal finds that because the applicant did not depart Australia and instead remained in Australia as an unlawful non-citizen, this is indicative of the applicant’s desire to remain in Australia permanently.

40. Further, the applicant applied for a protection visa in Australia, indicating his belief that there was a risk he would suffer harm in Malaysia and would not return to that country. The applicant provided no evidence to demonstrate that he no longer fears harm returning to Malaysia, and the fact that he remained in Australia after his protection visa was refused is indicative that he desires to remain in Australia permanently.

41. The applicant also provided no evidence that he holds a valid Malaysian passport to enable his return to Malaysia, or that he had made arrangements to return to Malaysia. The Malaysian passport provided with the visa application has expired. The absence of evidence to demonstrate that the applicant holds a valid passport to allow his return to Malaysia, and the absence of any evidence about travel arrangements made by the applicant to return to Malaysia is indicative that the applicant does not intend to return to that country and desires to remain in Australia permanently.

42. The applicant’s evidence about his medical condition and required treatment is also dated and not current. The applicant provided no evidence of the medical treatment he undertook to address his anxiety and depression, despite the purpose of the medical treatment visa being that treatment.

43. The absence of evidence about the treatment undertaken by the applicant to date suggests to the Tribunal that the applicant has not undertaken the medical treatment proposed in the Form 1507. The absence of evidence that the applicant has undertaken that medical treatment is indicative that the applicant has not undertaken the medical treatment because medical treatment is not the applicant’s purpose in remaining in Australia.

44. Finally, the evidence is that the applicant’s spouse/de facto partner and their child are currently located in Australia. The Tribunal finds, in combination with the other concerns it has, that the presence of the applicant’s family in Australia would act as an incentive for him to remain in Australia permanently.

    CONCLUSION

45. Having considered the requirements of cl 602.215, 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.

46. There is no evidence that the applicant has undertaken the medical treatment suggested in the visa application form to date, and the applicant’s migration history and absence of arrangements and documentation for his return to Malaysia outweigh any suggestion in terms of his past compliance with conditions as demonstrating that he genuinely intends to stay temporarily in Australia for the purpose of medical treatment.

1. The Tribunal is not satisfied that the applicant will comply with visa conditions or that his intention is to remain in Australia for the purpose of medical treatment.

2. Therefore, the applicant does not satisfy cl 602.215.

   DECISION

3. The Tribunal affirms the decision dated 3 April 2023 refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

   Nathan Goetz

   
   

   Member