Chhantyal (Migration)

[2022] AATA 4733

Chhantyal (Migration) [2022] AATA 4733 (4 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deepak Chhantyal

CASE NUMBER:  2204240

HOME AFFAIRS REFERENCE(S):          BCC2022/304096

MEMBER:Mark Bishop

DATE:4 November 2022

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 04 November 2022 at 1:48pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – substantial compliance with visa conditions – period of unlawful residence – lengthy stay in Australia – permanent visa applications – debt to the Commonwealth – 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 2 March 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 16 February 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 applicant failed to satisfy the criteria set out in the relevant Migration Regulations.

4. On 11 October 2022 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 28 October 2022. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. On 27 October and 3 November 2022 the Tribunal sent system generated SMS reminder notices to the applicant’s phone number.

5. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. These “preliminaries” are not part of the hearing and the presiding member does not attend during this process as it is conducted by administrative staff of the Tribunal. Case Note number 5 sets out the detail of Tribunal attempts to contact the applicant inclusive of applicant advice that she would not appear at the hearing as she thought she had withdrawn the review application. There was no such withdrawal on the Tribunal file at time of decision.

6. The applicant did not appear before the Tribunal.

7. The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with relevant provisions in the Act and the invitation has not been returned to sender. In these circumstances, and pursuant to the relevant section in 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.

8. The applicant provided a copy of the decision record to the Tribunal.

9. For the following reasons, the Tribunal has concluded 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.

    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) 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.

12. Clauses 600.215 and 602.212 are set out immediately below:

    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.

13. Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:

    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.

14. Clause 602.212 (6) (f) provides as follows:

    “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

15. The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

16. Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”

17. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

18. The applicant was born on 4 March 1987. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

19. Hence the applicant does not meet the criteria set out in cl.602.215 (6).

20. Accordingly the Tribunal turns to cl.602.215.

21. The delegate summarised the applicant’s visa/immigration history as follows:

    Departmental records demonstrate that:

    ·The applicant first entered Australia on 17 November 2006 and during this time has only been absent from Australia for 102 days.

    ·On 29 April 2013 the applicant demonstrated his intention to obtain permanent residency by applying for a permanent Protection Visa. The application was refused and the applicant unsuccessfully sought review at the Administrative Appeals Tribunal, the Federal Court and the Full Federal Court.

    ·On 07 June 2021 the applicant demonstrated their continued intention to remain permanently by again applying for a permanent Protections Visa, however the subsequent application was not allowed.

    ·The applicant has previously spent time in Australia as an unlawful non-citizen and has not held a substantive visa since 09 November 2012.

    ·Department systems confirm that the applicant has also sought Ministerial intervention and that they have a debt to the Commonwealth of Australia in the amount of $6961.12.

    ·A response period of seven days was afforded to the applicant to provide a response to the Natural Justice letter regarding their intention to be a genuine temporary entrant, their incentive to depart Australia and their migration history.

    ·This timeframe has now elapsed and to date, no response has been received by the Department.

    ·Although it is acknowledged that the applicant may be seeking medical treatment in Australia, the applicant must nevertheless satisfy the decision maker that they intend to comply with visa conditions, be a genuine temporary entrant and that they have incentive to depart Australia if a visa were to be approved.

    ·In their Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future.

    ·Departmental records confirm that the applicant has unsuccessfully applied for a permanent visa onshore and has taken opportunity to present their case or circumstances for review.

    ·I find that their adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis.

    ·I have considered the claims and supporting evidence that the applicant has provided with their application. I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

22. In isr Application for a Medical Treatment Visa dated 16 February 2022 the applicant declared the purpose of his stay was “Medical treatment…or consultation in Australia…”, that he was self-funded, would borrow money from relatives and friends to support his stay in Australia, and declared he would be under medical care in Australia from 15 March 2022 as he suffered from depression and needed medical treatment with the cost unknown and the facility or hospital  providing treatment was unknown.

23. The applicant provided a copy of a Form 1507 dated 24 July 2017 and signed by a Bing Liu that outlined details of treatment as depression/stress and treatment information as referred to a psychologist at Campsie Family Medical Centre. The Tribunal notes the date of the Form 1507 is now more than 5 years old.

24. On 11 October 2022 the Tribunal wrote to the applicant and invited her to attend a hearing on 4 November 2022. The Tribunal advised the applicant to “please provide all documents you intend to rely on to support your case by 28 October 2022.”

25. The applicant did not respond to the request as outlined in paragraph 24 above. The applicant did not provide any documents to the Tribunal.

26. The Tribunal has considered all the above information. There is no evidence before the Tribunal the applicant has been receiving any medical treatment in Australia for a lengthy period of time.  There is no evidence before the Tribunal the applicant has current plans to seek medical treatment.  There is no evidence before the Tribunal the applicant has plans to leave Australia. There is no documentation or additional information before the Tribunal that was not before the delegate. The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state she must remain in Australia for ongoing consultation. There is no evidence before the Tribunal the applicant has a current consultation and or plans for future consultation. Information provided does not state that the treatment the applicant was seeking as at the time of her Application for a Medical Treatment Visa was unavailable outside of Australia and in the applicant’s home country.

27. The Tribunal has considered the claims and supporting evidence that the applicant has provided with her application.

28. The Tribunal finds that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that she does not genuinely intend to remain in Australia on a temporary basis.

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

30. 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.

    DECISION

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

    Mark Bishop

    Senior Member