Abu Zaid (Migration)

[2021] AATA 5263

Abu Zaid (Migration) [2021] AATA 5263 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhamad Bin Abu Zaid

CASE NUMBER:  1934883

HOME AFFAIRS REFERENCE(S):          BCC2019/5563461

MEMBER:Meena Sripathy

DATE:22 October 2021

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 22 October 2021 at 9:40am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – no response to s 359 invitation – medical or related purpose – Neck and Shoulder Pain – medical treatment requirements – 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

CASES
El Mir v MICMSMA (No 2) [2021] FCCA 1093
Hasran v MIAC [2010] FCAFC 40

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 21 November 2019 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 for the visa on 5 November 2019. 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 the delegate concluded that the applicant was attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence in Australia and was not satisfied that clause 602.215 was satisfied.

4. The applicant applied for review of the decision to the Tribunal on 10 December 2019.

5. On 15 September 2021 the Tribunal wrote to the applicant pursuant to s359 of the Act informing him that in addition to the issue of whether he satisfied cl.602.215, the Tribunal will also be considering whether he meets cl.602.212 at the time of its decision.  It noted the information regarding the treatment he sought at the time the application was made on 5 November 2019 and invited him to provide updated information about medical treatment he is seeking now or evidence to support any other subparagraph of cl.602.212 he relied on at this time.  He was asked to provide this information, and any further evidence or information to support his intention to remain temporarily for the purpose of the visa, by 29 September 2021.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 29 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On that same date, 15 September 2021, the Tribunal also sent to the applicant an invitation to attend a hearing on 21 October 2021 by video conference using Microsoft Teams.

8. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. On 11 October 2021 the Tribunal wrote to the applicant to advise the hearing scheduled on 21 October 2021 has been cancelled as he lost his entitlement and the Tribunal has no power to permit him to appear. He was informed he can provide information or evidence addressing the issues in the review before 21 October 2021. 

10. No response, information or evidence has been received to date.

11. Given the circumstances of the applicant’s complete lack of engagement with the Tribunal since the application for review was lodged in December 2019, the Tribunal has decided to proceed to decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. A recent decision of the Federal Circuit Court of Australia, El Mir v MICMSMA[1], binding on this Tribunal, found that it was necessary for the Tribunal to identify the relevant purpose of an applicant’s proposed visit, which must be a purpose permitted by cl 602.212 in order to properly assess the ‘genuine temporary stay’ criterion in cl 602.215.

    [1] El Mir v MICMSMA (No 2) [2021] FCCA 1093

14. Therefore, the preliminary issue in this case is whether the applicant meets, at time of the Tribunal’s decision, one of the stated purposes for which the stay in Australia is required: cl.602.212 and, if so, whether he meets cl.602.215.

    Are the medical treatment requirements met?

15. Clause 602.21 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. 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.

16. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

17. At time of application, on 5 November 2019, the evidence indicates the applicant sought the visa to seek medical treatment for Neck and Shoulder Pain until 4 November 2020.  He provided a Form 1507 in support of the application.

18. The period for which the applicant originally sought the visa for medical treatment to November 2020 has passed. No other evidence was since provided about medical treatment the applicant seeks, or if not medical treatment, what other subparagraph of cl.602.212 he relies on now.

19. The Tribunal specifically requested this information in its invitation of 15 September 2021 to which no reply was received.  He was provided until 21 October 2021 to provide this or any other evidence on which he relied. To date no further information has been received by the Tribunal.

20. The Tribunal has considered all of the evidence and information before it.  The Tribunal informed the applicant of the issue of the requirement in cl.602.212 in its invitation of 15 September 2021 and invited him to provide information about the medical treatment he seeks or is obtaining, however to date he has not provided any evidence.  Therefore the Tribunal is not satisfied there is 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 and expenses of it as at the time of its decision.

21. Given the above findings, the requirements in cl 602.212(2) are not met.

22. 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, there is no evidence 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 PNG who resides in Western Province of PNG; or that he has turned 50 and been refused a permanent visa for reasons of health criteria.

23. Given these findings that the applicant does not meet any of the permitted purposes for the grant of a Medical Treatment visa, it is not necessary to consider whether the applicant has a genuine intention to stay temporarily for the visa purpose: cl.602.215 and for this reason the Tribunal has not considered this issue further.

24. 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

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

    Meena Sripathy
    Member