2305817 (Migration)

2305817 (Migration) [2024] AATA 2559 (27 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2305817
MEMBER:Jane Marquard
DATE:27 June 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 27 June 2024 at 1:55pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – medical or related purposes – medical treatment requirements – no evidence of arrangements for treatment provided – genuine temporary entrant – migration history – long periods of unlawful stay – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 602.211, 602.212, 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

The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 11 April 2023 to refuse to grant him a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO REVIEW AND MIGRATION RECORDS
The applicant is a [age]-year-old man from Shandong, China.
He arrived in Australia in 1997 on a [temporary] visa.
He applied for a [different] visa on 22 January 1998, which was refused in February 1999.
He was granted a Bridging Visa E on 22 January 1998 which ceased on 18 March 1993. After this, he remained in Australia unlawfully for a period of over 4 years.
His next visa was a further Bridging Visa E granted on 29 July 2002. This visa expired on 28 August 2003.
He applied for a protection visa on 29 July 2002, which was refused on 9 August 2002. The Refugee Review Tribunal affirmed the decision on 22 July 2003.
The applicant then remained in Australia unlawfully until 10 August 2021, for a period of 19 years.
He applied for the visa the subject of this review on 9 March 2023.
The delegate of the Department of Home Affairs (the Department) refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to remain in Australia temporarily for the purpose of medical treatment.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
RELEVANT LAW
At the time of application for this visa, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The Subclass 602 (Medical Treatment) visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
Relevantly to this case, Clause 602.211 of Schedule 2 to the Regulations requires that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has considered the application and supporting documentation provided to the Department and the applicant’s migration records.
On 27 April 2023 the Tribunal wrote to the applicant to acknowledge his application for review and invite him to provide material or written arguments for the Tribunal to consider. No documents or submissions were provided in response to this invitation.
On 10 April 2024 the Tribunal invited the applicant to a hearing to give evidence and present arguments in relation to the issues arising in the review. The applicant was also invited to provide written submissions and documents if he wished to do so. The applicant was invited to provide evidence to demonstrate that he met the criteria for the visa including:
·details of medical treatment undertaken since the date of the application for review;
·details of medical treatment sought, and arrangements made including for costs of treatment;
·details of compliance or non-compliance with previous visas and in particular explanation for why the applicant remained in Australia unlawfully for over 24 years;
·details of intention to comply with the conditions of the visa;
·details of incentives to return to China after the medical treatment such as family, assets and employment; and
·details of how the Tribunal could be assured that his intention was to stay temporarily in Australia given that he had been in Australia since 1997.
No documents or information were provided by the applicant to the Tribunal in response to the letter dated 10 April 2024.
On 27 May 2024 the applicant notified the Tribunal that he would not participate in a Tribunal hearing, and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.
The Tribunal has made a decision on the papers as requested by the applicant pursuant to s 360(2)(b) of the Act.
FINDINGS AND REASONS
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
Is the visit for medical or related purposes?
Clause 602.211 of Schedule 2 to the Regulations requires that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
The applicant applied for a medical treatment visa for the period 20 March 2023 to 20 August 2023. He said that he required treatment for a hand specialist. He was seeking treatment from ‘[Named health clinic]’, [Dr A].
The applicant claimed in his Form 1507 ‘Evidence of intended medical treatment’ that he required treatment for a right-hand injury during work. He stated that he ‘still has right finger pain’.
The medical treatment sought was for the period 20 March 2023 to 20 August 2023. On 10 April 2024 the Tribunal requested that the applicant provide evidence of treatment undertaken or further medical treatment sought, but this evidence was not provided. The applicant chose not to attend a Tribunal hearing where this issue could have been discussed.
The Tribunal is not satisfied without any evidence about medical treatment sought, that the applicant seeks to remain in Australia for the purposes of medical or related treatment.
The Tribunal is not satisfied therefore that cl 602.211 of Schedule 2 to the Regulations is met.
Clause 602.212
Clause 602.212 of the Regulations, as extracted in Attachment A to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevant clauses are discussed below.
Are the medical treatment requirements met?
Relevantly to this matter, cl 602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it 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.
As referred to earlier, no evidence of arrangements for treatment has been provided to this Tribunal. The Tribunal has requested this information in a letter dated 10 April 2024. The applicant was invited to a hearing which he chose not to attend.
The Tribunal is not satisfied that arrangements for treatment have been concluded.
Given the above finding, the Tribunal is not satisfied that the requirements in cl 602.212(2) are met.
Does the applicant meet cl 602.212(6) of the Regulations?
Clause 602.215 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.
There is no information before the Tribunal that the applicant 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 cl 602.212(6) does not apply and the applicant must comply with cl 602.215 of Schedule 2 to the Regulations.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
Clause 602.215 of the Regulations 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.
Substantial compliance with last held visa
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 (cl 602.215(1)(a)). Information from migration records indicate he was granted a Bridging E (Subclass 050) visa on 14 March 2023. His last substantive visa was a [temporary] visa granted on 29 November 1997.
There is no information before the Tribunal that the applicant has not complied with his last held bridging visa. The Tribunal has taken this into consideration favourably in regard to whether he genuinely intends to stay temporarily for the purposes of medical treatment.
Does the applicant intend to comply with conditions of the visa?
The Tribunal must have regard to the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject (cl 602.215(1)(b)).
The Medical Treatment visa is subject to Conditions 8101(No Work) and 8102 (Maximum 3 Months Study) as well as Condition 8503 (No Further Stay)[1].
[1] Department of Home Affairs, ‘Departmental Procedural Instruction, Sch 2 Visa 602- Medical Treatment’.
The applicant has said in his application that he has a history of overstaying his visa in Australia. Migration records indicate that he was granted a Bridging Visa E on 22 January 1998 which ceased on 18 March 1993. He remained in Australia unlawfully for a period of 4 years, 6 months and 7 days. His next visa was a further Bridging Visa E granted on 29 July 2002. This visa expired on 28 August 2003. He applied for a protection visa on 29 July 2002, which was refused on 9 August 2002. The Refugee Review Tribunal affirmed the decision on 22 July 2003. He remained in Australia unlawfully until 10 August 2021, for a period of 19 years. In the letter dated 10 April 2024, the applicant was asked to comment on his periods of unlawfulness, but he chose not to do so.
The Tribunal is not satisfied that the visa applicant intends to comply with conditions of his visa given that he has shown disregard for the migration system in the past and remained in Australia without a visa for long periods. The applicant chose not to appear at the Tribunal hearing where if he had wished to do so he could have made submissions on this issue.
Other relevant matters
The Tribunal has considered other relevant matter (cl 602.215(1)(c)).
Firstly, the Tribunal has considered the absence of information about medical treatment. The applicant has not provided details of medical treatment undergone or sought in the future, despite the Tribunal requesting this information. This visa is for persons seeking medical or related treatment. The Tribunal is not satisfied therefore that the applicant has had medical treatment or is seeking it, given the absence of evidence. The Tribunal is not satisfied therefore that he has a genuine intention to stay temporarily for the purpose of medical treatment, particularly as he has resided in Australia since 1998 and has had long periods of unlawfulness. Instead, the Tribunal is satisfied that the applicant is using the medical treatment visa pathway as a means to maintaining residency in Australia. He arrived on a tourist visa but since then has applied for permanent visas including a protection visa and a partner visa, strong indications that he has an intention to reside permanently.
Secondly, the applicant did not provide information to the Tribunal about incentives to return to China at the end of his period of medical treatment, such as employment, family, and assets. This information was requested by the Tribunal in a letter dated 10 April 2024 and notably had also been requested by the Department. The applicant chose not to appear at the Tribunal to discuss these dispositive issues. The applicant did say in his application that he was married, but he did not provide any information to the Department about other family members, employment or assets. The Tribunal is not satisfied therefore that there are significant incentives to return to China, as he has been living in Australia since 1998 and has not provided persuasive evidence of incentives.
Summary of findings on genuine intention
The Tribunal is required to consider whether the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment. On the evidence before it, the Tribunal cannot accept that the applicant genuinely intends to stay temporarily for medical treatment considering that it does not accept that he intends to comply with visa conditions, his long period of stay in Australia, his migration history including applications for permanent visas and long periods of unlawfulness, and the omission of evidence about medical treatment and costs.
The Tribunal is not satisfied therefore that cl 602.215 of Schedule 2 to the Regulations is met.
Concluding paragraphs
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.
Jane Marquard
Member

[2024] AATA 2559

27 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies