Chen (Migration)

[2020] AATA 844

Chen (Migration) [2020] AATA 844 (12 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minghuang Chen

CASE NUMBER:  1812473

DIBP REFERENCE(S):  BCC2018/1060808

MEMBER:Moira Brophy

DATE:12 February 2020

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 12 February 2020 at 3:08pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – strong motivation to remain in Australia– lack of compliance in the past –adverse migration history– 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 Immigration on 16 April 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 applied for the visa on 5 March 2018. 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 (the Regulations).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant genuinely intended to remain in Australia for the purposes of medical treatment and not for the purpose of residing permanently in Australia.

4. The applicant, Mr Minghuang Chen appeared before the Tribunal on 27 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

7. The applicant is a 26 year old national of China who arrived in Australia on 12 November 2010 as the holder of a TU-571 Student visa. The applicant has not departed Australia since then. The TU-571 Student visa ceased on 15 March 2013. O12 June 2014, the applicant lodged an unsuccessful application for a Protection Visa which was refused on 22 November 2013. The applicant then sought merits review of this decision. The Tribunal (differently constituted) affirmed the delegate’s decision on 18 October 2016. The applicant also sought judicial review of this Decision and the decision of the Tribunal was upheld on 15 December 2017. On 14 July 2017, the applicant also lodged an invalid Medical Treatment UB- 602 visa application. The applicant stayed onshore unlawfully until this current application was lodged. This Medical Treatment UB 602 visa application was lodged on 5 March 2018 and the applicant currently holds a WE 050 Bridging Visa. The applicant last held a substantive visa on 15 March 2013.

8. To satisfy the requirements for the grant of a Medical Treatment visa, the applicant is required to demonstrate that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The applicant submitted Evidence of intended medical treatment form 1507 requiring treatment for medical condition anxiety disorder and depression disorder, and the treatment being cognitive behaviour therapy over time.

9. In support of this applicant the following documents were provided to the Department :

   ·     Department of Immigration and Border Protection form 1507

   ·     Department of Immigration and Border Protection form 956

   ·     Department of Immigration and Border Protection form 48 ME

   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. The issue in this case is whether the applicant has provided sufficient information for the Tribunal to be satisfied he meets the criteria for the visa and whether the Tribunal is satisfied the applicant genuinely is intending to stay in Australia only for the purposes of treatment.

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

11. 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).

12. The application form (Form 48ME) contains a series of questions which asks the applicant how long she seeks to remain in Australia (Q15), for what period will she be under medical care (Q17), she is asked to describe the medical treatment she has arranged (Q18), and details of his doctor/hospital in her home country and in Australia (Q's 19 and 20) and funding for her stay (Q26).

13. At the time of application the applicant stated he wished to remain in Australia for the period from 6 March 2018 to 6 December 2018 to obtain medical treatment from Hamid Reza Dadgostar. The original form 1507 submitted with the application and completed by the psychologist, Hamid Reza Dadgostar was dated 2 March 2018. Mr Dadgostar opined the applicant had an anxiety disorder and depression and that this condition would require cognitive behaviour therapy.

14. The applicant told the Tribunal that he last saw the two months ago. He could not recall the name of the doctor he had seen the doctor on about six occasions. He was not scheduled to see him again and was receiving no ongoing treatment as he was not able to afford the cost. He said he previously had obtained a report from the doctor that he had provided to the Department.

15. When put to him that he had been here for the extended time period he had initially sought he agreed and when asked whether there was any treatment plan in place for beyond that time he said there was not..

16. The applicant has filed with the Tribunal a copy of the Department's Decision Record dated 16 April 2018 which sets out his immigration history. The Tribunal raised as an issue with him its concerns that his immigration history, including the fact that he had lived in Australia for over six years without a substantive visa, and that history tended to indicate that he applied for the Medical Treatment visa to extend his stay in Australia and not because he intended seeking medical treatment in Australia. The applicant agreed it was his intention to seek to stay in Australia. He said he wanted to stay and work here so he could receive medical treatment. He felt his lawyer had not assisted him.

17. The applicant was granted an extension of time (14 days) to provide any additional evidence he wished to rely on.

18. As at the date of this decision no further evidence had been provided.

19. Accordingly after taking into account the evidence on file and the evidence given at the time of hearing the Tribunal finds it cannot be satisfied that the applicant meets the requirements for the visa as there is no information or evidence to suggest that that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

20. Given the above findings, cl.602.215 (1) is not met.

    DECISION

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

    Moira Brophy
    Member