Chong (Migration)

[2022] AATA 4583

Chong (Migration) [2022] AATA 4583 (7 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kok Ying Chong

CASE NUMBER:  2116762

HOME AFFAIRS REFERENCE(S):          BCC2021/1942198 

MEMBER:Naomi Schmitz

DATE:7 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 07 November 2022 at 2:24pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – lengthy stay in Australia – period of unlawful residence – application for permanent visa – no current evidence of medical treatment – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 359, 363, 379
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 26 October 2021 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 12 October 2021. 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 had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.

4. On 16 November 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 17 October 2022 the Tribunal invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:

   1.     Immigration records demonstrate that your last arrival in Australia was on 29 November 2015 on a Visitor visa (subclass 601). Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   2.     In your medical treatment visa application lodged on 12 October 2021, you claimed that you would like to remain in Australia from 25 October 2021 until 15 January 2022 to seek medical treatment for abnormal liver function with ongoing mental health with psychological therapy needed for 12 weeks. Why have you not departed Australia since 15 January 2022?

   3.     The Tribunal does not have information concerning your medical treatment. Please provide information regarding:

   a.     When you were first diagnosed with those condition(s);

   b.     What your current medical treatment for those condition(s) involves;

   c.     The prognosis of your medical condition(s); and

   d.     When does the medical treatment you have undertaken end or when is it due to end?

   4.     Noting you have been in Australia since 29 November 2015 please provide any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

6. The invitation requesting information advised that if the applicant did not provide information pursuant to s.359(2) in writing by 31 October 2022, the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments: s.360(3) of the Act. The applicant did not provide information pursuant to s.359(2) of the Act.

7. On 20 October 2022 the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:00am on 4 November 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

8. As the applicant failed to provide information pursuant to s.359(2) of the Act, the applicant no longer had a right to appear before the Tribunal pursuant to s.360(3). The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear.[1]

   [1] Hasran v MIAC [2010] FCAFC 40

9. On 2 November 2022 the hearing listed on 4 November 2022 was cancelled and the applicant was notified of the cancellation of the hearing by email. The applicant was advised that the Tribunal Member would proceed to make a decision on the information before the Tribunal, including any information received up until the time of decision.

10. Subsequently on 2 November 2022 at 1:21 PM, the applicant wrote to the Tribunal stating the following:

    I was tested covid positive with severe sore throat. I would like to apply for 14 days extension to provide the documents. I have attached my covid test result for your information sorry for responding your email late. 

11. Attached to the email was a photograph of a positive COVID-19 rapid androgen test result.

12. The Tribunal subsequently advised that as per the Tribunal’s letter dated 17 October 2022, the applicant’s entitlement to a hearing was lost as the applicant failed to provide information by 31 October 2022. This meant that the Tribunal was unable to allow the applicant to appear at a hearing. The Tribunal Member further noted that the applicant did not submit the evidence which indicated that they were unable to respond to the invitation within the statutory timeframe. The Tribunal Member also regarded the photograph of limited assistance and did not consider it credible or reliable evidence, as it did not show who undertook the COVID-19 test and when the rapid androgen test was taken. The Tribunal advised that the Member would consider all information available, including up until the time of decision.

13. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), using the contact information provided by the applicant. Further, from reviewing the chronology of communications, the Tribunal is satisfied that sufficient efforts were made to contact the applicant. Of significance, the applicant has not filed any information or materials since her application for review on 16 November 2021, approximately one year ago. The Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[2] In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal. [3]

    [2] s.2A of the Administrative Appeals Tribunal Act 1975 (Cth)

    [3] s.359C(1) of the Migration Act 1958 (Cth)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has turned 50, being born in 1969 and is thus currently 53 years of age. The applicant has applied for a permanent visa while in Australia which was refused. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    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.

17. The delegate’s decision record detailed the applicant’s migration history. The applicant first arrived in Australia on 29 November 2015 as the holder of a Visitor (Subclass 601) Electronic Travel Authority visa that was valid for three months, ceasing on 29 February 2016. The applicant has not departed since this time. Whilst onshore, the applicant applied for a [permanent visa]. The application was refused. The applicant remained onshore in Australia and unsuccessfully sought review of the Department's decision. Following the outcome, the applicant still did not depart Australia and remained as an unlawful non-citizen until 13 October 2021 when the applicant was granted was granted a Bridging visa (Class WC, Subclass 030) in association with her application for a Medical Treatment visa.

    VISA APPLICATION

18. The applicant identified that she was in Australia, residing in New South Wales. She is a citizen of Malaysia. At the time of application, the applicant wrote the purpose of her stay in Australia was medical treatment. Her stay would be self-funded ‘I will pay my expenses with bank deposits and credit cards’. She indicated that she would be under medical care for approximately three months from 25 October 2021 until 15 January 2022 to seek treatment for ‘…abnormal liver function with ongoing mental health, I need psychological therapy for 12 weeks’. At the time of application, the applicant declared that she was separated, had overstayed her previous visa and had a previous [permanent] visa refused. She claimed to not have any relatives, friends or contacts in Australia.[4]

    [4] Departmental File BCC20211942198 - Applicant’s visa application

19. Attached to the visa application was a 1507 Form signed by Dr John William Kramer of Beach Street Family Practice on 12 October 2021. It detailed the medical condition requiring treatment as ‘Abnormal liver function with ongoing mental health’. The treatment information recorded was ‘Psychological therapy for 12 weeks’.[5] No other medical information was provided with the application or in connection with the review.

    [5] Ibid. Form 1507

    FINDINGS and REASONS

20. In the present case, the visa applicant seeks the visa for the purposes of medical treatment for her liver and mental health. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

21. There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicant’s last substantive visa, or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa.

22. The Tribunal has considered all relevant matters. The applicant first arrived in Australia on 29 November 2015 on a Visitor (Subclass 601) Electronic Travel Authority visa which was valid for three months and has maintained a continuous residence in Australia for approximately seven years, a significant period of time which the Tribunal places adverse weight on.

23. The Tribunal has also had regard to the applicant’s migration history which indicates that she applied for [permanent residency] and unsuccessfully sought review. Her conduct in seeking a permanent visa indicates that she seeks to remain permanently or indefinitely in Australia. The Tribunal places adverse weight on the applicant’s migration history.

24. During the applicant’s time in Australia, the applicant has been an unlawful non-citizen, following the refusal of [another] visa until 13 October 2021 which the Tribunal places adverse weight on. From this history, it appears the applicant is prepared to disengage from immigration authorities and only make herself visible when it suits her purpose. Consequently, the Tribunal has serious concerns that the applicant wishes to continue to remain in Australia and that she will continue to do so, even if it means she will become unlawful as he has previously done. This is particularly so given her avenues for remaining in Australia have narrowed.

25. The Tribunal has also considered the applicant’s claims regarding medical treatment in Australia. The applicant has not provided any current or other relevant evidence which indicates that she is undergoing medical treatment and that she intends to stay temporarily in Australia for the purposes of medical treatment. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 and letter from Dr Kramer signed on 12 October 2021. Over one year has passed since that document was completed and no updates on treatment have been provided. The Tribunal considers the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) indicates that the applicant did not apply for the visa for medical treatment but did so to maintain an ongoing residency in Australia.

26. Further there is no evidence that the applicant could not seek medical treatment in her home country of Malaysia. As such, the Tribunal is not persuaded that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, medical treatment, but intends to continue an ongoing residence in Australia.

27. The Tribunal has taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa (Class WC, Subclass 030) well beyond the time she had requested (15 January 2022), over nine months, by virtue of the time it has taken to bring this matter to review and despite this additional time, there is no evidentiary material that the applicant has made any efforts to seek medical treatment for her abnormal liver function and mental health issues. Consequently, this raises doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted but intends to continue an ongoing residence in Australia.

28. There is no information or evidence before the Tribunal regarding the applicant’s personal and economic circumstances that would encourage her to return to her home country at the end of the proposed stay. For example, the applicant’s family composition, her relationship with her family members, the applicant’s job prospects in Malaysia or assets. Whatever the motivation for the applicant remaining in Australia, it would appear that the conditions here have encouraged the applicant to continue remaining in Australia and there are little personal and/or economic reasons for her to return to Malaysia. On the basis of the applicant’s migration history, the significant time the applicant has spent onshore in Australia and the information submitted in her visa application, the Tribunal does not have confidence, and is not satisfied, that her personal and/or economic circumstances are conducive to her returning to Malaysia.

29. Overall, the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

30. Given the above findings, cl.602.215 are not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa.

    decision

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

    Naomi Schmitz
    Member