Chao (Migration)

[2021] AATA 53

Chao (Migration) [2021] AATA 53 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kuo Tung Chao

CASE NUMBER:  1823607

DIBP REFERENCE(S):  BCC2018/2522421

MEMBER:Deputy President Jan Redfern

DATE:21 January 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 21 January 2021 at 4:44 PM

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – whether applicant has a genuine intention to stay temporarily in Australia – consideration of intention to maintain ongoing residence in Australia – no specified medical treatment – whether applicant is unfit to depart – decision under review affirmed.

PRACTICE AND PROCEDURE – operation of ss.359A and 360 of the Migration Act 1958 – invitation to comment or respond to adverse information that would be the reason or part of the reason for affirming the decision under review – failure to provide the Tribunal with comments or a response or request an extension of time within a prescribed period – loss of entitlement to appear before the Tribunal.

LEGISLATION

Migration Act 1958 (Cth), ss.65, 359, 359A, 359C, 360

Migration Regulations 1994 (Cth), Schedule 2, cl.602

SECONDARY MATERIALS

Department of Home Affairs, Procedural Instruction, Sch2 Visa602-Medical Treatment

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 July 2018 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Taiwan and was born in 1977. The applicant arrived in Australia on 29 November 1992 as the holder of a Student (subclass UA 560) visa. By application dated 5 July 2018 the applicant applied for the Medical Treatment visa. At that time, UB contained one subclass, Subclass 602 (Medical Treatment). The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the applicant the visa because she was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes of obtaining medical treatment or for related purposes. Relevantly, the delegate found that, on balance, the applicant was “attempting to use the medical treatment visa pathway as a means to maintain ongoing residence”.

4. The applicant applied to the Tribunal for review of the decision on 15 August 2018.

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

   BACKGROUND AND PROCEDURAL ISSUES

6. The applicant arrived in Australia as the holder of a student visa in November 1992. The applicant’s visa history was set out in the decision of the delegate. Relevantly, the decision of the delegate notes the following:

   ·    The applicant applied for a student visa that was refused on 22 March 2010. He sought review of the decision which was affirmed by the former Migration Review Tribunal on 6 July 2010;

   ·     The applicant applied for Ministerial Intervention and the outcome was finalised as “not considered” on 23 February 2011; and

   ·    The applicant made an application for a protection visa on October 2013 and subsequently withdrew this application and on 22 February 2013 applied for a Partner visa. The application for a partner visa was refused on 20 June 2014 and the applicant applied to the former Tribunal for review of this decision which was affirmed by this Tribunal on 10 March 2016.

7. The applicant applied for the Medical Treatment visa by application dated 5 July 2018.[1] He did not specify in the application the medical condition requiring treatment and in response to the question “Briefly describe the medical treatment in Australia you have arranged and estimated cost” he stated “To be advised”. In response to the question about available funds to cover the cost of the stay, the applicant responded “I have some savings” but otherwise provided no evidence to demonstrate that he had adequate funds to cover all costs associated with the visa. The period nominated for the treatment was from 6 July 2018 to 6 January 2019. At the time of lodging the application the applicant did not provide the form that is usually required to accompany the application, being a Form 1507, known as “Evidence of intended medical treatment”. Instead the applicant’s migration agent advised by letter dated 5 July 2018 that the applicant required medical consultation/treatment for a previous condition for which he was diagnosed in 2015/16. It was noted that the applicant consulted a mental health nurse who concluded that the applicant “had suffered psychological abuse as a result of a highly conflicted relationship with his then partner”. The letter noted that a similar conclusion was drawn by Dr Stephen Hook who diagnosed the applicant in 2015 as showing signs of “significant emotional distress and enduring psychological difficulties expressing symptoms severe enough to warrant a diagnosis of major depressive episode”. No reports or documents were provided in relation to the claimed diagnoses. It was noted that Form 1507 would be provided in due course.

   [1] Form 48ME dated 5 July 2018.

8. On 17 July 2018, the applicant’s migration agent provided to the Department a Form 1507 dated 16 July 2018, which was apparently completed and signed by Dr Emily Kwok on 16 July 2018. Dr Kwok recorded the medical condition as “Adjustment disorder” and specified the treatment as “psychological counselling for the purposes of managing normative stress reactions and prevention of adjustment disorder”. Dr Kwok was nominated as the treating practitioner and the treatment was to be provided at the Hills Clinic in Kellyville.

9. The applicant did not provide any documents to the Department other than identity documents.

10. As already noted, the application was refused and the applicant applied for  review of this decision to the Tribunal. The application for review was lodged by a migration agent and the contact address was notified in the application for review. The application was acknowledged, and the applicant was advised to provide, amongst other things, details of any changes in circumstances and contact details. The Tribunal has not received any correspondence from the applicant or his representative notifying of a change of contact details or representation.

11. By letter dated 4 September 2020, the applicant was requested to provide information in relation to his application for review, including any evidence of treatment in relation to the medical condition referred to in his application, any documents showing that arrangements had been concluded in relation to carrying out the treatment, any documents in relation to the costs relating to any such treatment and copies of any medical reports and documents from Dr Kwok relating to the nature and estimated duration of the treatment. The applicant was advised that even though the delegate had found the applicant did not genuinely intend to stay temporarily in Australia for the purpose of cl.602.215 of the Regulations, the Tribunal may also consider whether the applicant met the criteria in cl.602.212 of the Regulations. This criteria under cl.602.212 of the Regulations are set out in detail below but, in essence, this clause identifies the requirements in relation to the proposed medical treatment.

12. The request for information was made pursuant to s.359(1) of the Act and requested that the applicant respond by 18 September 2020. The letter was sent to the applicant’s migration agent as representative and authorised recipient. The applicant did not respond to the letter either on his own account or through his representative.

13. By letter dated 7 September 2020 the Tribunal requested information from Dr Emily Kwok being any document relating to the medical treatment referred to by her in Form 1507, including any medical report or any other document. Dr Kwok responded by email dated 21 September 2020 as follows:

    I confirm that Mr Chao did not make appointments to attend psychological treatment after the completion of Form 1507.

14. By letter dated 12 October 2020, the Tribunal wrote to the applicant under s.359A of the Act inviting the applicant to comment on or respond to adverse information. The adverse information was the response provided by Dr Kwok, that the applicant had not obtained any medical treatment or concluded any arrangements to carry out the treatment, including the payment of costs relating to the treatment. It was noted that this may lead the Tribunal to find that the applicant was not seeking the visa for the purposes of medical treatment and that arrangements had not been concluded to carry out the treatment, which would lead the Tribunal to find that the applicant did not satisfy cls.602.211 and 602.212(2) of Schedule 2 to the Regulations. This would in turn lead the Tribunal to affirm the decision under review. The applicant was given the opportunity to provide written comments or a response by 26 October 2020. This letter was sent to the applicant’s migration agent as representative and authorised recipient.

15. Relevantly, the invitation noted that if the Tribunal did not receive a response within the period allowed or as extended, the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal at a hearing.

16. The applicant did not respond to the invitation under s.359A of the Act either on his own account or through his representative. Nor did the applicant seek an extension to respond to the invitation prior to the time nominated for a response to be provided.

17. By reason of s.359C of the Act, if a person is invited in writing under s.359 of the Act to give information and does not give that information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information. Under s.360 of the Act, the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments, although s.360(2) of the Act provides that this section does not apply if, relevantly, s.359C(2) of the Act applies to the applicant. Subsection 360(3) of the Act provides that if any of the paragraphs in s.360(2) of this section apply the applicant is not entitled to appear before the Tribunal. In summary, if the Tribunal invites the applicant to comment on or respond to adverse information within a certain period of time and the applicant does not do so, the applicant loses the right to a hearing.

18. I am satisfied that the applicant was served with the invitation under s. 359A of the Act because an electronic copy of the invitation was sent to the email address of the applicant’s representative which was specified on the application for review form that was lodged with the Tribunal. No error message indicating that the email was not successfully transmitted was received by the Tribunal.

19. Having regard to these legislative provisions and the failure of the applicant to respond, the applicant is no longer entitled to a hearing.

20. By letter dated 22 December 2020, the applicant was advised of the above and that the Tribunal would proceed to consider his review based on the available material. The applicant was further advised that any information or submissions in support of his application should be made by close of business on Friday, 15 January 2021. 

21. Having undertaken the appropriate searches of the file and the electronic case management system, I am satisfied that no such information or submissions have been provided by either the applicant or on his behalf by his representative. I have therefore determined to proceed under s.359C of the Act.

    RELEVANT LAW

22. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. Part 602, specifically cl.602.2 of the Regulations, sets out the primary criteria that must be satisfied by the applicant at the time of decision.

23. While the delegate found that the applicant did not meet the criterion relating to whether he was genuinely intending to stay temporarily in Australia for the purpose for which the visa would be granted, there are other criteria which must be met that fall for consideration. As such, it is apt to outline the criteria in cl.602 of Schedule 2 to the Regulations to identify the determinative issues in this case. Relevantly, all criteria must be satisfied at the time a decision is made on the application.

24. Clause 602.211 of the Regulations requires that the visa applicant must seek to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

25. Clause 602.212 of the Regulations, as extracted in the attachment to this decision, requires that the applicant meet one of the seven alternative sub criteria in cls.602.212(2)-(8) of the Regulations.

26. Clause 602.212(2) sets out the criteria for the proposed medical treatment. All criteria must be met. Relevant to the circumstances of this case, subclause (2) requires that:

    ·the applicant seeks to obtain medical treatment in Australia;

    ·the arrangements for treatment have been concluded;

    ·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.

27. The criteria set out in cls.602.212(3)−(5) of the Regulations relate to the circumstances when the applicant is an organ donor, a support person for another applicant seeking medical treatment or a citizen of Papua New Guinea. These provisions do not apply to the applicant. The criteria in cl.602.212(6) apply in respect of an applicant who has turned 50, 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, has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criterion but has been refused the visa. The applicant was born in 1977 and is 43 years old. As such, subclause (6) does not apply.

28. Clauses 602.212(7) and (8) apply where an applicant meets the nominated criteria in subclauses (2)−(6) but does not meet all relevant criteria in circumstances where there is financial hardship or where there are compelling reasons why the visa should be granted. These provisions do not fall for determination unless I am satisfied that the applicant meets cls.602.212(2)(a) to (c) of Schedule 2 of the Regulations.

29. Broadly speaking, cl.602.213 of the Regulations applies if the applicant holds a substantive temporary visa at the time of the application. The applicant did not hold a substantive temporary visa at the time of his application for the medical treatment visa and as such this provision is not relevant.

30. Clause 602.214 of the Regulations requires that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted. There is no evidence about this, and I cannot be satisfied either way about whether this criterion is met. However, for the reasons that follow, it is apparent that this is not a determinative issue in this case.

31. Clause 602.215 of the Regulations, as extracted in the attachment to this decision, 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. Relevantly, this was the subject of the refusal by the delegate.

32. Clause 602.216 of the Regulations requires the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia. The only evidence about this matter is the statement made by the applicant in his application that he has savings.

33. Having regard to the material provided and the circumstances in this case, it appears that the critical determinative issues are whether the applicant meets the criteria set out in cls.602.212(2) and 602.215 of the Regulations. As already noted, I have not assessed whether the applicant meets cls.602.214 and 602.216 and cls.620.212(7) and (8) are only relevant if I am satisfied that the applicant meets cls.602.212(2)(a) to (c) of Schedule 2 of the Regulations.

    CONSIDERATION

34. The issues for determination in this matter are whether the applicant satisfies the criteria in cls.602.212(2) and 602.215 of Schedule 2 of the Regulations.

35. Having regard to the available evidence and submissions before me, I am not satisfied that the applicant meets the criteria in cl.602.212(2) of the Regulations at the time of my decision. The medical treatment proposed at the time of the application was “psychological counselling for the purposes of managing normative stress reactions and prevention of adjustment disorder”. The period of the proposed treatment is from 6 July 2018 until 6 January 2019. This period has passed. There is no evidence of any medical treatment provided in the relevant period, and indeed there is evidence from Dr Kwok to the contrary. Nor is there evidence of any concluded arrangements to carry out that proposed treatment. There is no evidence or submissions provided about any other medical treatment proposed.

36. As such, at the time of my decision I am not satisfied that the applicant meets cl.602.212(2)(a) or (b) of Schedule 2 of the Regulations. An applicant must satisfy all of the relevant criteria enumerated in subclause (2) to meet the criteria in cl.602.212 of the Regulations. Accordingly, I am not satisfied that the applicant meets the requirements set out in cl.602.212(2) of the Regulations. As no other provisions in cl.602.212 of the Regulations are relevant, I am therefore not satisfied that the applicant meets the criteria in cl.602.212 of Schedule 2 of the Regulations.

37. While there is no need to consider the matter further because I am not satisfied the applicant meets cl.602.212 of the Regulations and he must meet all relevant criteria at the time of the decision, the delegate refused the application on the basis that she was not satisfied the applicant met the criteria in cl.602.215 of Schedule 2 of the Regulations and so I have considered this issue for completeness.

38. Clause 602.215 of the Regulations sets out the matters that must be considered when determining whether an applicant “genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”. The Tribunal must have regard to three matters.

39. First, the Tribunal must have regard to 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 (cl.602.215(1)(a) of the Regulations). There is no evidence that the applicant has failed to comply substantially with such conditions.

40. Secondly, the Tribunal must have regard to whether the applicant intends to comply with conditions to which the Subclass 602 visa would be subject (cl.602.215(1)(b) of the Regulations). According to the Department Procedural Instruction,[2] a Medical Treatment visa would usually be subject to conditions 8101 and 8102 (restrictions on work and study or training) and condition 8503.[3] There is no evidence about this and, a such I cannot be satisfied about whether the applicant intends to comply with the relevant conditions.

    [2] Department of Home Affairs, Procedural Instruction, Sch2 Visa602-Medical Treatment.

    [3] Relevantly 602.611, these are the only conditions that can be imposed.

1. On the issue of “any other relevant matter” referred to in cl.602.215(1)(c) of the Regulations, I note that the Procedural Instruction provides that a “genuine” visitor is not defined in the Act but that the policy envisages that an applicant should have a genuine intention to leave Australia at the end of the medical treatment plan. In particular, it is noted that a Medical Treatment visa should not be granted to applicants who intend to remain in Australia for a longer period to, for instance, maintain ongoing residence in Australia. This would be, in my view, a “relevant matter” for the purposes of cl.602.215(c) of the Regulations.

2. In this case, the applicant has not given evidence of his intention but there are a number of matters from which it can be inferred that the applicant’s intention is not to leave Australia at the end of any medical treatment. First, the applicant has not undertaken the medical treatment referred to in the application which was to be finalised nearly two years ago, yet he has remained in Australia since this time. There is no explanation as to why this is so. Secondly, the applicant first arrived in Australia in 1992. He has been in Australia for a lengthy period and has made several applications for a permanent visa, relevantly, a protection visa then a partner visa. These matters are inconsistent with an intention to stay temporarily in Australia and evince an intention for a permanent rather than temporary stay.

3. Having regard to the provisions of cl.602.215(1) of the Regulations I am not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes of the Medical Treatment visa. Accordingly, I am not satisfied that the applicant meets the requirements of cl.602.215 of Schedule 2 of the Regulations.

4. Given my findings, the decision under review is affirmed.

   DECISION

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

   Jan Redfern PSM
   Deputy President

   
   

   ATTACHMENT

   Migration Regulations 1994

   Schedule 2

   602.212 (1)    The requirements in one of subclauses (2) to (8) are met.

   Medical treatment

   (2)All of the following requirements are met:

   (a)    the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;

   (b)    arrangements have been concluded to carry out the treatment;

   (c)     if the treatment is an organ transplant:

   (i)the donor of the relevant organ is accompanying the applicant to Australia; or

   (ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;

   (d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

   (e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

   (f)     either:

   (i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

   (ii)evidence is produced that the relevant government authority has approved the payment of those costs.

   Organ donor

   (3)All of the following requirements are met:

   (a)    the applicant seeks to donate an organ for transplant in Australia;

   (b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;

   (c)     the applicant satisfies public interest criterion 4005;

   (d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

   (e)     either:

   (i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

   (ii)evidence is produced that the relevant government authority has approved the payment of those costs.

   Support person

   (4)All of the following requirements are met:

   (a)    the applicant seeks to give emotional and other support to an applicant in relation to whom:

   (i)the requirements described in subclause (2) or (3) are met; or

   (ii)the requirements described in subclause 675.212(2) or (3) are met; or

   (iii)the requirements described in subclause 685.212(2) or (3) are met;

   (b)    the person to whom the applicant is to provide support holds:

   (i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or

   (ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or

   (iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;

   (c)     the applicant satisfies public interest criterion 4005.

   Western Province of Papua New Guinea

   (5)All of the following requirements are met:

   (a)    the applicant is a citizen of Papua New Guinea;

   (b)    the applicant resides in the Western Province of Papua New Guinea;

   (c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.

   Unfit to depart

   (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.

   Financial hardship

   (7)All of the following requirements are met:

   (a)    one of the following applies:

   (i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;

   (ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;

   (iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;

   (iv)the requirements described in subclause (5) are met in relation to the applicant;

   (v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;

   (b)    the applicant is in Australia;

   (c)     the applicant holds:

   (i)a Subclass 602 visa; or

   (ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or

   (iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;

   (d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;

   (e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;

   (f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;

   (g)     the applicant has compelling personal reasons to work in Australia;

   (h)    the applicant satisfies public interest criterion 4005.

   Compelling personal reasons

   (8)All of the following requirements are met:

   (a)    one of the following applies:

   (i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;

   (ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;

   (iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;

   (iv)the requirements described in subclause (5) are met in relation to the applicant;

   (v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;

   (b)    the applicant is in Australia;

   (c)     the applicant has compelling personal reasons for the grant of the visa;

   (d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).

   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.