Dong (Migration)

[2022] AATA 4938

Dong (Migration) [2022] AATA 4938 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiaoyong Dong

CASE NUMBER:  2113962

HOME AFFAIRS REFERENCE(S):          BCC2021/1540786

MEMBER:Stephen Witts

DATE:17 January 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 17 January 2023 at 1:47pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – applicant’s migration history – lengthy stay in Australia – previous visa cancelled – no evidence of current medical treatment – 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 21 September 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 6 August 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 applicant appeared before the Tribunal on 17 January 2023 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The Tribunal has considered all the matters before it.

8. According to the delegate’s decision record, provided to it by the applicant, the applicant lodged an application for a medical treatment visa. According to the department it considered the applicant’s application in terms of the amount of time already spent in Australia and the applicant’s migration history and made a decision that it gave rise to a concern as to whether the applicant was a genuine temporary entrant.

9. According to the delegate the applicant arrived in Australia on 15 March 2014 as the holder of a subclass 573 student visa and as at the date of decision had not departed Australia since that time.

10. According to the Department on 11 February 2015 the applicant demonstrated his intention to remain permanently by applying for a protection subclass 866 visa which was refused on 4 March 2016, following that refusal the applicant unsuccessfully sought review of that decision.

11. According to the delegate the applicant had previously had that visa cancelled and has not had a substantive visa issued since 28 June 2016, and for a considerable portion of the time in Australia.

12. The Tribunal also notes that departmental records indicate that on 21 March 2021 the applicant provided a form 1507 evidence of intended medical treatment which stated that the applicant had been suffering from depression and anxiety and that according to the medical report. The Tribunal notes that departmental records indicate that on 21 March 2021 the applicant provided a form 1507 evidence of intended medical treatment which stated that the applicant had been suffering from depression and anxiety and that according to the medical report that the applicant may need mindfulness treatment and possible drug therapy.

13. At the hearing the Tribunal had a discussion with the applicant regarding his application.

14. The applicant stated that he has never been back to his home country since his arrival here in 2014 and that he is working in the construction sector collecting rubbish. In regard to how he was supporting himself financially he stated that friends and family were supporting him and that he had a family back in his home country including a wife and three children that he has not seen since his arrival here.

15. The Tribunal then had a detailed discussion with the applicant regarding his need for a medical treatment visa and the treatment he is undergoing here in Australia.

16. He stated that he has been suffering from depression and that he is not in a “good mood”. When asked by the Tribunal to indicate clearly what treatment he is engaged in for his depression he stated that he can’t remember but that he has had some counselling in the past and that he did have at some time a prescription for medication. He stated that he has not been physically well.

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

17. 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.

18. 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.

19. 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.

20. 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

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

22. 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”

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

24. The applicant was born on 24 August 1986.Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

25. Hence the applicant does not meet the criteria set out in cl.602.212 (6).

26. Accordingly, the Tribunal turns to cl.602.215.

27. The Tribunal has considered the evidence provided above very carefully in particular noting that the applicant has now been here for eight years and has never returned back to his home country since that time and nor did the applicant state that he had any particular plans to return to his home country for some time. The Tribunal has also considered that the applicant seemed unable to explain what medical treatment he needed to remain in Australia for other than that he has been suffering from depression, but that no other evidence was provided to the Tribunal at the hearing. The Tribunal has considered this very carefully and does not find the applicant’s evidence in regard specifically to his medical treatment requirements as credible as no other evidence was provided.

28. The Tribunal has considered all the above information. There is no evidence before the Tribunal that the applicant has been receiving any medical treatment in Australia for a lengthy period of time.  There is no evidence before the Tribunal that the applicant has current plans to seek medical treatment.  There is no evidence before the Tribunal that the applicant has plans to leave Australia.

29. 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 the applicant must remain in Australia for ongoing consultation.

30. There is no evidence before the Tribunal that 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 the applicant’s application for a Medical Treatment visa was unavailable outside of Australia and in the applicant’s home country.

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

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

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

34. 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

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

    Stephen Witts
    Member