Bui (Migration)

[2024] AATA 3094

Bui (Migration) [2024] AATA 3094 (10 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Hai Bui

CASE NUMBER:  2312035

HOME AFFAIRS REFERENCE(S):          BCC2023/2735484

MEMBER:Rachel Da Costa

DATE:10 July 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 10 July 2024 at 10:43am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant waived his right to a hearing – married to an Australian citizen and has a child with that person – not to refer to the Minister – applicant does not genuinely intend to remain in Australia on a temporary basis – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

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 28 July 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 for the visa on 16 May 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 the delegate was not satisfied that the applicant genuinely intends to remain in Australia on a temporary basis.  

4. On 11 August 2023, the applicant applied to the Tribunal for review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision.

5. On 24 May 2024, the applicant wrote an email to the Tribunal requesting the Tribunal affirm his application so that he can make an application for Ministerial Intervention as he is currently married and has a child with an Australian citizen. On 3 June 2024, the applicant confirmed by email that he waived his right to a hearing. In light of this, the Tribunal has proceeded to determine the matter on the evidence available to it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 meets the criteria for the grant of the visa and more particularly, whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, namely, medical treatment.

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

8. 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.

9. Based on the evidence before the Tribunal, the Tribunal finds that the applicant is in Australia and he is 29 years old. Given these findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does not apply.

10. In the present case, the applicant seeks the visa for the purposes of medical treatment (including organ recipient) or consultation in Australia. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

11. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. There is no evidence before the Tribunal to indicate that the applicant did not substantially comply with the conditions to which his last substantive visa and subsequent bridging visas were subject.

12. A Medical Treatment visa is subject to the conditions 8101 (no work) and 8201 (maximum 3 months study). In his Medical Treatment visa application form, the applicant has indicated that his stay would be supported by his spouse/de facto partner and he does not intend to undertake study or training for more than three months. On this basis, the Tribunal is prepared to accept that if the visa were granted, the applicant would comply with the conditions to which the Subclass 602 visa would be subject.

13. In considering any other relevant matters, the Tribunal has considered the applicant’s migration history and evidence about his intentions to depart or remain in Australia, including his personal circumstances.

14. In the Form 1507, completed by Dr Tsz Ching Lui and dated 7 March 2023, the details of the applicant’s treatment are listed as “insomnia, stress and anxiety” and the treatment information is listed as “counselling”. In his Medical Treatment visa application form, the applicant states that he will be under medical care in Australia from May 2023 to May 2026. The applicant has not provided any further details about his medical treatment apart from stating in a letter to the Department dated 3 July 2023[1] that he has been “diligently pursuing medical care” and he has “made every effort to address [his] health concerns in a timely manner to enable [his] return to Vietnam as soon as [his] treatment concludes.” The applicant has not provided any specific details about precisely what medical treatment he has been undertaking, how often, with whom or when the treatment is due to end and why, apart from stating in his Medical Treatment visa application form that he seeks the visa until May 2026.

    [1] This letter is in response to a s 57 letter sent by the Department on 25 May 2023 inviting the applicant to comment on his immigration history, to provide evidence that he is a genuine visitor and that he has incentives to depart Australia if the visa were granted.

15. While there is no evidence before the Tribunal to indicate that the applicant did not substantially comply with the conditions to which his last substantive visa and subsequent bridging visas were subject, as set out in the delegate’s decision, the applicant arrived in Australia in July 2013 and he has only departed Australia once briefly in 2016. He has spent time in Australia as an unlawful non-citizen and overstayed his Bridging visa. The last substantive visa he held ceased on 15 March 2017. The delegate’s decision indicates that the applicant lodged a Residence Combined Partner visa application in 2016 which was refused in 2023. Despite stating in a letter to the Department dated 3 July 2023 that he intends to stay temporarily in Australia for medical treatment and return to Vietnam, the applicant has indicated to the Tribunal that he intends to make an application for Ministerial Intervention as he is currently married and has a child with an Australian citizen. Although the applicant has not stated his intention directly, the Tribunal infers that that he wishes to request Ministerial Intervention to seek a migration outcome which will enable him remain in Australia indefinitely or permanently with his wife and child rather than return to Vietnam.

16. In his letter to the Department dated 3 July 2023, the applicant refers to having strong ties to Vietnam which provide a compelling incentive for him to return. He refers to significant family relationships, financial holdings and ownership of assets. He states that he is prepared to submit supporting documents to substantiate these claims but no such documents or further details have been provided. He also refers to ongoing employment commitments in Vietnam which necessitate his return but no details have been provided about this either.

17. The Tribunal has considered all the evidence before it about the applicant’s circumstances. In considering whether the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment, for the following reasons the Tribunal finds that he does not. In the absence of further evidence, the Tribunal does not accept that the applicant has been, or intends to be, treated in Australia for a medical condition. The Tribunal gives the applicant’s evidence about his ties to Vietnam as an incentive for him to return no weight in the absence of any independent corroborative evidence and in light of his indication that he intends to seek Ministerial Intervention. The applicant has resided in Australia since 2013 apart from a brief departure in 2016. He has applied unsuccessfully for a Partner visa and has indicated that he is married to an Australian citizen and has a child with that person. He has asked the Tribunal to affirm the delegate’s decision to refuse to grant him a Medical Treatment visa so that he can apply for Ministerial Intervention. All these factors indicate to the Tribunal that the applicant does not genuinely intend to stay temporarily in Australia for any reason and that, in fact, the applicant wishes to obtain a migration outcome which enables him to remain in Australia on an indefinite or permanent basis with his wife and child.

18. The Tribunal’s findings above that the applicant has complied with past visa conditions and that he will comply with the conditions attached to a Medical Treatment visa do not outweigh the Tribunal’s concerns about whether he has a genuine intention to stay temporarily in Australia.

19. Therefore, the Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted, namely, medical treatment or consultation.

20. Given the above findings, cl 602.215 is not met.

    Conclusion

21. 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.

    Referral to the Minister

22. The applicant has indicated that he intends to apply for consideration of her case by the Minister pursuant to s 351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

23. The applicant has not specifically requested the Tribunal to refer his case and has not made submissions in support of the referral, although the Tribunal understands the reason would primarily relate to the fact that he has a wife and child who are Australian citizens.

24. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant intends to make a request directly to the Minister himself.

    DECISION

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

    Rachel Da Costa
    Member