Albert (Migration)

[2023] AATA 467

Albert (Migration) [2023] AATA 467 (9 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Albert

CASE NUMBER:  2207675

HOME AFFAIRS REFERENCE(S):          BCC2022/1420695

MEMBER:Naomi Schmitz

DATE:9 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 March 2023 at 1:25pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – applicant’s migration history – medical evidence provided – employment plans in France – maintaining ongoing residence in Australia – unable to depart Australia – decision under review affirmed          

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 359, 363, 379
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

CASES

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 4 May 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).

2. The applicant applied for the visa on 26 April 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).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.

4. On 25 May 2022, the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 20 February 2023, the Tribunal invited the applicant under s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review, namely the applicant’s migration history and time onshore in Australia. The notice stated that the applicant’s migration history suggested that the applicant wished to stay permanently in Australia, including what is set out below:

   1.Your migration records indicate that:

   a.     You arrived in Australia over five years ago on 20 December 2017 on a Temporary Working Holiday visa (Subclass 417) which ceased on 20 December 2018. Apart from a period of three days, you have remained in Australia.

   b.     You were granted a further Temporary Working Holiday visa (Subclass 417) on 5 February 2019 which ceased on 20 December 2019.

   c.     You applied for a Student visa (Subclass 500) on 20 December 2019 which was refused on 6 November 2021. You then applied for review of this decision at the Tribunal on 23 November 2021. The Tribunal found that it had no jurisdiction on 22 March 2022.

   d.     You applied for a Medical Treatment visa (Subclass 602) on 26 April 2022, and this was refused on 4 May 2022. You applied for review of this decision on 25 May 2022 which is the subject of this application for review.

   e.     You have had a brief period of being an unlawful non-citizen (three days), on 20 December 2019 when your Working Holiday visa (Subclass 417) ceased until 24 December 2019 when you were granted a Bridging visa (Subclass 010).

6. The Tribunal also on 20 February 2023 and in the same letter invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:

   1.You arrived in Australia over five years ago on 20 December 2017 on a Temporary Working Holiday visa (Subclass 417) which ceased on 20 December 2018. Aside from three days, you have remained in Australia. Why have you not departed Australia?

   2.In your medical treatment visa application lodged on 26 April 2022, you claimed that you would like to remain in Australia from 29 April 2022 until 22 July 2022 to seek medical treatment, specifically physiotherapy, for left sciatica as well as an orthopaedic specialist review. Why have you not departed Australia after 22 July 2022?

   3.The Tribunal does not have information concerning your medical treatment. Please provide information regarding:

   a.     When you were first diagnosed with those condition(s);

   b.     The nature and estimated duration of the treatment;

   c.     The proposed date(s) of treatment;

   d.     The prognosis of your medical condition(s); and

   e.     The cost of your treatment.

   4.     Noting you have been in Australia since 20 December 2017, please provide any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

7. The invitation to comment on or respond to information and request for information advised that if the applicant did not comment on or respond to the information put to him under s.359A and did not provide information pursuant to s.359(2) in writing by 6 March 2023, the applicant would lose any entitlement he might have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal would make a decision on the information it had without taking any further steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act.

8. On 23 February 2023, the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing by video-link commencing at 9:30 am (NT time) on 14 March 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

9. The applicant did not comment on or respond to information and provide information pursuant to s.359A and s.359(2) of the Act. As the applicant did not comment on or respond to information and did not provide information pursuant to s.359A and s.359(2) of the Act, the applicant no longer had a right to appear before the Tribunal pursuant to s.360(3). 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 the applicant to appear.[1]

   [1] Hasran v MIAC [2010] FCAFC 40

10. On 7 March 2023, the hearing scheduled for 8 March 2023 was cancelled and the applicant was notified of the cancellation of the hearing by email. The letter advised the applicant that the Tribunal Member would proceed to make a decision on the information before the Tribunal, including information received up until the time of decision.

11. Subsequently on 7 March 2023, the applicant sent the Tribunal a signed response to hearing invitation and requested that the hearing be rescheduled.

12. On 8 March 2023, The Tribunal confirmed that the applicant had lost his entitlement to a hearing and therefore the Tribunal was unable to hold a hearing in the matter. The Tribunal referred to the information contained in its letter dated 7 March 2023.

13. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), using the contact information provided by the applicant. The Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[2] In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal.[3]

    [2] s.2A of the Administrative Appeals Tribunal Act 1975 (Cth)

    [3] s.359C(1) and s.359C(2) [Part 5] of the Migration Act 1958 (Cth)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born in 1991 and is thus currently 32 years of age. The applicant has not applied for a permanent visa while in Australia. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    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.

    VISA APPLICATION

17. The applicant identified that he was in Australia, residing in the Northern Territory. He is a citizen of France. At the time of application, the applicant wrote that the purpose of his stay in Australia was for medical treatment. He claimed his stay would be self-funded, having access to $2000, in addition to $7000 from his superannuation fund. In support the applicant provided a Commonwealth Bank statement showing a closing balance of $2,054 on 26 April 2022 and a superannuation statement dated 31 December 2021 showing a balance of $7,851.61. He also claimed his parents overseas could send additional funds if required. No financial records were provided in support.

18. The applicant indicated that he would be under medical care for approximately three months from 29 April 2022 until 22 July 2022 to seek treatment for ‘left sciatica problems’. He claimed to require physiotherapy treatment for three months, as well as a review from an orthopaedic specialist. He claimed each physiotherapy session would cost $65 and that he required 12 sessions equating to $780 and a review costing $300. Overall, the applicant estimated his medical treatment would cost $1080. 

19. Attached to the visa application was a Form 1507 signed by Dr A Tonga on 21 April 2022. It detailed the medical condition requiring treatment as ‘Left Sciatica’. The treatment information stated, ‘Physiotherapy 3 to 6 months, Needs Orthopaedic Specialist review’. No other medical information was provided with the application or in connection with the review.

20. At the time of application, the applicant declared that he has never married and that he did not have any relatives, friends or contacts in Australia. He further declared that he has always complied with all visa conditions to which his previous visas were subject. He stated that he has had a Student (Subclass 500) visa refused due to not meeting the criteria.

21. The applicant attached a copy of a flight ticket booking and payment summary, showing a departure on 20 July 2022 from Darwin to Nice.

22. The Tribunal has had regard to the applicant’s statutory declaration which detailed:[4]

    a.    He requires treatment for a back injury which he sustained while in Australia and was previously treated with physiotherapy and exercise;

    b.    The injury recently flared up resulting in bed rest and missed work;

    c.     Due to the severity of the injury the applicant claimed he was unable to endure the long journey home including sitting on planes, carrying luggage, waiting in check-in, security and customs lines;

    d.    The applicant states his Student visa was refused and rather than seeking review of the refused Student visa, he decided to use the remaining time in Australia to work and save to allow him to relocate back to France when his bridging visa expires;

    e.    The applicant's father is based in France and his mother, sister and niece reside in Monaco;

    f.   The applicant claims he wishes to return to France with a Business Management degree and work with previous employers to start up new cafes and conduct sailing tours; and

    g.    Treatment for the applicant's back has commenced with approximately three months of physiotherapy required, with the applicant awaiting confirmation of an appointment with an orthopaedic specialist to discuss treatment options.

    [4] Statutory declaration of applicant dated 2 May 2022

23. The Tribunal has also had regard to an undated letter addressed to the Department, but sent to the Tribunal on 25 May 2022 which provided the following claims:

    a.    In July 2021 the applicant crushed his sciatic nerve and was admitted to the Royal Darwin Hospital where he stayed overnight and resulted in the applicant being on sick leave for three weeks;

    b.    During this time the applicant sort treatment from physiotherapists, a chiropractor and received acupuncture and commenced a treatment plan which involved daily stretches and exercises along with ice packs;

    c.     The applicant subsequently returned to work on limited hours and lighter duties;

    d.    In December 2021, the applicant claims he had a slipped back disk which resulted in sciatic nerve pain again, time of work and resumption of part-time work;

    e.    In March 2022, the applicant claims he crushed the nerve again and has not returned to work and looked for more treatment options such as steroid injections and stem cell treatment;

    f.   The applicant claims to be unable to undertake any long-distance travel to France and carry more than 10kgs, needs to do stretches and exercises every hour, and use swimming pools; and

    g.    The applicant plans to return to France with his girlfriend and open dive bars in the South of France.[5]

    [5] The applicant states ‘my partner and I were eligible for working visas in the desired

    FINDINGS and REASONS

24. In the present case, the applicant seeks the visa for the purposes of medical treatment, namely sciatic nerve pain. This is a purpose for which a Medical Treatment visa may be granted: cl. 602.212.

25. There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicant’s last substantive visa, or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa.

26. The Tribunal has considered all relevant matters. The applicant first arrived in Australia on 20 December 2017 and has maintained a continuous residence in Australia for approximately five years and three months, a significant period of time which the Tribunal places adverse weight on.

27. The Tribunal has also had regard to the applicant’s migration history which indicates that he has maintained an ongoing residence in Australia on a series of temporary visas, including two Temporary Working Holiday visas. The applicant subsequently applied for a Student visa which was refused and sought administrative review. The applicant has thereafter maintained a residency in Australia through a series of bridging visas. The Tribunal places adverse weight on the applicant’s migration history. The Tribunal considers that the applicant’s migration record strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis and does not have a genuine intention of staying temporarily for the purposes of medical treatment.

28. During the applicant’s time in Australia, the applicant has been an unlawful-non-citizen for three days. Due to the short duration, over a period of approximately five years, the Tribunal places little weight on the period of unlawfulness and considers it an aberration.

29. The Tribunal has also considered the applicant’s claims regarding medical treatment in Australia. The applicant has not provided any current or other relevant evidence which indicates that he is undergoing medical treatment and that he intends to stay temporarily in Australia for the purposes of medical treatment. The applicant claims to have suffered from sciatic nerve pain since July 2021, that is for approximately 20 months. There is no evidence of any medical appointments and a medical treatment plan with evidence that it has been committed to, for instance there is no evidence of attendance at a consultation(s) or financial records in support. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 signed on 21 April 2022. Nearly one year has passed since that document was completed and no updates on treatment have been provided. The Tribunal considers the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) indicates that the applicant did not apply for the visa for medical treatment but did so to maintain an ongoing residency in Australia.

30. The Tribunal has taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa C (Subclass 050) well beyond the time he requested, namely 22 July 2022, approximately eight months, by virtue of the time it has taken to bring this matter to review, and despite this additional time, there is no evidentiary material that the applicant has made any efforts to seek medical treatment. The Tribunal has considered the applicant’s two statements where he claims to have received medical treatment, however as they are not corroborated by any independent medical evidence, the Tribunal places limited weight on them and regards them as self-serving. Consequently, this raises doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted but intends to continue an ongoing residence in Australia.

31. The Tribunal has had regard to the applicant’s claims that he is unable to depart Australia due to being unable to sit for long periods on an aeroplane and undertake long distance travel. As these claims are not supported by any independent medical evidence the Tribunal does not accept these assertions. The Tribunal also places no weight on the flight ticket referred to in [21] as evidence of a genuine intention to stay temporarily in Australia as the applicant has remained onshore in Australia.

32. Further, there is no evidence that the applicant could not receive medical treatment for his back pain in his home country of France. As such, the Tribunal is not persuaded that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, medical treatment, but intends to continue an ongoing residence in Australia.

33. There is no information or evidence before the Tribunal regarding the applicant’s personal and economic circumstances that would encourage him to return to his home country at the end of the proposed stay. For example, the applicant’s family composition, his relationship with his family members, the applicant’s job prospects in France or assets. Although the applicant claims to have a father, mother, sister and niece who reside in France and Monaco, along with ambitions to start a café and dive bar, limited weight is placed on these claims as the applicant has maintained an ongoing residence in Australia since 2017, over five years and there is no credible or independent evidence to support that the applicant has commenced preparations to establish any business or has confirmed employment. Overall, the Tribunal is not satisfied that he has a strong intention or incentive to depart now or in the near future.

1. Of significance, the Tribunal notes the applicant is now 32 years of age, having first come to Australia as a 25-year-old. The Tribunal considers that the applicant has now spent a good part of his adult years in Australia, namely over half a decade and that starting over in France will present challenges to the applicant. Whatever the motivation for the applicant remaining in Australia, it would appear that the conditions here have encouraged the applicant to continue remaining in Australia and there are little personal and/or economic reasons for him to return to France. On the basis of the applicant’s migration history and the information submitted in his visa application, the Tribunal does not have confidence, and is not satisfied, that his personal and/or economic circumstances are conducive to him returning to France.

2. Overall, the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

3. Given the above findings, cl.602.215 is not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa.

   DECISION

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

   Naomi Schmitz
   Member

   
   
   

countries. Due to the closed borders for almost two years, she no longer meets the age
requirement. This has affected my plans to continue working and traveling to New Zealand

and Canada like previously mentioned. She will relocate to France in September in 2022’.