CHEN (Migration)

[2021] AATA 942

CHEN (Migration) [2021] AATA 942 (4 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SHUIJIN CHEN

CASE NUMBER:  1904456

HOME AFFAIRS REFERENCE(S):          BCC2019/333427

MEMBER:Angela Cranston

DATE:4 March 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 04 March 2021 at 4:22pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – no appearance at hearing – no current information or opportunity to test claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), cl 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 7 February 2019 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 applied for the visa on 4 January 2019. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment).

3. In her application the applicant stated that she wished to remain in Australia from 14 January 2019 to 14 July 2019 because of depression and that she would be seeking treatment consisting of antidepressant, psychologist referral and psychiatrist review.

4. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant met cl.602.215.

5. On 10 February 2021 the Tribunal wrote to the applicant at the last notified email address advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant (and exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to give oral evidence and present arguments at a hearing by telephone at 1.00p.m on 3 March 2021. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.

6. The Tribunal confirmed that the hearing invitation was sent to the applicant at the most recently advised email address.

7. The Tribunal sent SMS reminders on 24/2/2021 and 2/3/2021 to the applicant's most recently notified telephone number. The Tribunal also phoned the applicant on 3 March 2021 at 12.51, 13.00 and 13.30 but the phone was not answered.

8. The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. There was no reason provided from the applicant as to the applicant's failure to appear and there is nothing before the Tribunal to suggest that she was ill. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

11. The issue in this case is whether the applicant meets clause 602.215.

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

12. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

13. 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).

14. The claims before the Tribunal are lacking in essential detail. While the applicant has stated in her application that she wished to remain in Australia from14 January 2019 to 14 July 2019 because of depression and that she would be seeking treatment consisting of antidepressant, psychologist referral and psychiatrist review, there is no information as to what has happened since then.

15. The applicant was invited to appear before the Tribunal but did not do so.

16. As a consequence, the Tribunal has been unable to question her further as to the veracity of any of her claims, leaving her claims unclarified and the Tribunal's questions unanswered. On the evidence before it, the Tribunal is not satisfied that there is medical evidence to indicate that the applicant is medically unfit to depart Australia as described in cl 602.212(6) or that the applicant is currently seeking medical treatment or that she genuinely intends to stay temporarily in Australia for the purposes of medical treatment or for related purposes.

17. For the reasons given above, the Tribunal is not satisfied that the applicant meets clause 602.212(6) or 602.215.

    DECISION

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

    Angela Cranston
    Member