GAO (Migration)

GAO (Migration) [2018] AATA 1451 (11 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lifeng GAO
CASE NUMBER:  1717306
DIBP REFERENCE(S):  BCC2017/2531728
MEMBER:Jennifer Cripps Watts
DATE:11 April 2018
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 11 April 2018 at 3:50pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Genuine temporary entrant – Arrangements for medical treatment – Visa history – Family ties in Australia – Property investment – Extended absence from home country
LEGISLATION
Migration Act 1958, s 65, 359AA
Migration Regulations 1994, Schedule 2 cls 602.212, 602.215

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 July 2017 and provided the Tribunal with a copy of the Department’s Decision Record dated 20 July 2017. 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).
The delegate refused to grant the applicant the visa because she did not meet cl.602.215. This was because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
On 5 February 2018, the Tribunal sent the applicant a written invitation to attend her hearing on 11 April 2018 at 12:30pm. The applicant responded to the hearing invitation in writing on 7 February 2018 indicating she would attend, her representative would not attend and that she required a Mandarin interpreter.
In the hearing invitation the applicant was informed that she should provide any additional documents or information that she may wish to rely on during hearing by 4 April 2018. The applicant’s matter was re-constituted to a different member on 13 March 2013, due to the unforeseen unavailability of the member to whom the matter was originally constituted.
The applicant appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent, but he did not attend the hearing.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to various matters, including the applicant’s previous visa compliance with her last substantive visa or any sequent bridging visa, whether the applicant intends to comply with conditions to which the subclass 602 visa would be subject.
The Tribunal has considered all relevant matters, including whether the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health conditions, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth and, if not, whether she genuinely intends to stay in Australia temporarily.
Are the medical treatment requirements met?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl.602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl.602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:
·the arrangements for treatment have been concluded
·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
The Tribunal has considered the information before it, including documentary information and the oral evidence of the applicant and is not satisfied she meets cl.602.212.
A letter from the applicant’s general practitioner (“GP”), Dr Kim, dated 8 March 2018 was provided to the Tribunal. In it, he says:
a.“Mrs Lifeng Gao, 34 yrs, is currently a patient under my care. She seems (sic) me regularly for depression and various other meidcal (sic) conditions.”
It is accepted that the applicant sees her GP. His qualifications are not disputed. However, without any details of diagnostic procedures, dates the applicant has attended his surgery for her obesity and depression or specific treatment the doctor himself has provided directly for the applicant, the Tribunal cannot be satisfied that the applicant sees Dr Kim regularly or that she genuinely intends to have or arrange any treatments suggested or prescribed by him.
There is a form on the Department file that was discussed with the applicant at the hearing. In the Form 1507, “Evidence of intended medical treatment”, dated 11 July 2017 and signed by Dr Kim, he indicates at question 5. that the applicant’s treatment information, in support of the visa application, is lifestyle management, healthy living, relaxation techniques and psychologist and medications for her depression and obesity.
The applicant gave evidence at the hearing that she tries to eat a bit less and that she sometimes exercises, but said none of that works. She did not provide any detailed or corroborative evidence that would persuade the Tribunal that she does either of these things. The applicant was asked about the other intended or recommended treatments suggested by her treating general practitioner, Dr Kim, and confirmed that she has not explored or been prescribed or sought help with any relaxation techniques, she has not seen and does not have an appointment to see a psychologist, she does not attend any counselling and does not take any medication at the time of this decision for depression, other than the occasional sleeping pill.
The applicant was asked at the hearing whether she has made any arrangements for the treatment that was detailed in the From 1507 attached to her application, including treatment or sessions with a psychologist and said she hadn’t. The applicant said her doctor, Dr Kim, has written her a referral to a psychologist, but provided no documentary evidence of this to the Tribunal. She was asked the name of the psychologist and said she forgot. The applicant was asked if she has made any appointments or arrangements with the psychologist and said not yet. The applicant was asked how long she would be undertaking treatment or what the length of her proposed stay for the medical treatment is and said that she doesn’t know until she sees the psychologist. The applicant was asked when she intends to see the psychologist and said she hasn’t made an appointment. This somewhat circular reasoning was explored with the applicant throughout the hearing and the Tribunal is sure that the applicant, relying on her oral evidence, has not undertaken any of the medical treatments that were referred to in her application, nor has she made or concluded arrangements for medical treatment.
The applicant gave oral evidence that she is aware any sessions with a psychologist would be expensive and that she has to consider this before going ahead and seeing one. The Tribunal is not satisfied that arrangements for payment of any costs and expenses associated with the treatment and stay have been concluded or even commenced.
Given the above findings, the requirements in cl.602.212(2) are not met.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
In the delegate’s decision, a copy of which was provided to the Tribunal with the application for review, the applicant’s visa history and instances of non-compliance are summarised. The Tribunal has not received any submissions to indicate the information is incorrect and so has relied on the issues raised with regard to the applicant’s visa history from 2005 to the time she made her application in 2017 for the visitor visa that is the subject of this review. It was discussed with the applicant at the hearing what her visa situation has been since she applied for the visitor visa and up to the time of this decision and her answers were generally consistent with the information below.
The applicant was asked at the hearing whether, given her extended time onshore hold for most of the time temporary visas (and seeking Ministerial Intervention), she ever intended to depart Australia at any time in the future. She said maybe she would, for a holiday. The Tribunal clarified and the applicant confirmed yes, only for a holiday (offshore). The applicant was then asked if she intended to stay living in Australia permanently and said, “Yes.” She confirmed she was aware she has provided for a temporary visa. The Tribunal considers her application for a temporary visa to be inconsistent with her intention to remain onshore permanently.
In summary, the applicant’s visa history including, applications, grants, refusals, Ministerial Intervention requests and non-compliance with bridging visas, as expressed in the delegate’s decision to refuse the visa, is as follows:
a.01/04/2005 to 26/05/2005                  Granted 573 student visa
b.26/05/2005 to 06/11/2006                  Granted 573 student visa
c.06/11/2006 to 18/03/2008                  Granted 573 student visa
d.13/12/2011 to 02/08/2013                  Granted 572 student visa
e.22/07/2013  Business sponsorship withdrawn
f.10/09/2013  Applied 457 visa, withdrew application
g.19/11/2013  Student visa refused
h.26/06/2014  Refused student visa affirmed by MRT
i.17/07/2014  Ministerial Intervention, unsuccessful
j.19/03/2015   Ministerial Intervention, unsuccessful
k.13/05/2015  Ministerial Intervention, unsuccessful
l.10/06/2015  Ministerial Intervention, unsuccessful
m.30/06/2017  Ministerial Intervention, unsuccessful
n.Various  Bridging Visa E’s – did not depart
o.06/07/2017 to 13/07/2017                  BVE – did not abide by conditions
p.14/07/2017  Visitor visa 602 application lodged
q.20/07/2017  Visitor visa 602 refused
The applicant was asked what the length of the proposed stay for the medical treatment is and said she doesn’t know because she has not yet made contact with the psychologist to make any appointments. The applicant said that one of the Ministerial Invention requests received a response that as she was married she should apply for a partner visa, on the basis of her 2015 marriage to an Australian permanent resident, and she said she was granted a bridging visa on this basis. The applicant said at the hearing that her husband did not want to apply for a partner visa, they argued and did not apply for the partner visa.
There is no evidence before the Tribunal that the applicant requires ongoing treatment for a long period of time or, in the event she may need this, that there exceptional circumstances that justify the applicant not departing Australia. She has made no claim and provided no evidence that there are exceptional circumstances other than saying at the hearing that she wants to stay in Australia to help her mother. There is no evidence before the Tribunal that the applicant herself provides critical or essential care to her mother, who is an Australian citizen.
The applicant was asked if she intends to remain in Australia permanently and said she does. She said further that the only reason she would consider departing is for a holiday. The applicant then gave internally inconsistent information later in the hearing saying that if the visitor visa is refused, she will depart. Having regard to her earlier evidence and her visa history, the Tribunal gives the statement that she will depart no credit and does not believe the applicant, if she is required to depart, intends to or will depart if her visa is not granted.
The Tribunal is not satisfied, on the evidence, that the applicant intends to comply with conditions to which the visa would be subject, namely that she undertake medical treatment, simply because she said she has made no arrangements for the medical treatment she claims she needs in the 10 month period since she lodged her application, other than occasionally seeing Dr Kim and sometimes taking a sleeping pill, and provided no reliable evidence that she intends to.
The Tribunal has formed a strong view that the applicant is attempting to obtain the visa to maintain ongoing residence. She has now lived in Australia holding a series of temporary and bridging visas since 2005, she has requested Ministerial Intervention on more than one occasion. She has more family in Australia, including her mother, than China. She owns a residential property in Sydney and has a significant financial commitment in the form of a $400,000 plus mortgage with St George Bank.
The applicant said at the hearing that in 2013 she bought an apartment in Church St, Parramatta for about $600,000 with a mortgage from St George Bank. She said she rents the apartment for about $600 a week and the mortgage, which is now about $400,000, requires monthly repayments of about $1,500 “more or less”. On this information provided by the applicant, the Tribunal considers the property to be positively geared and estimates the applicant receives about $1,000 a month more than she needs to cover the mortgage repayments (but noting she probably has other expenses against the investment property).
The applicant has lived in Australia almost all her adult life and appears to have no family or economic ties to her home country. She lives in Australia with her mother, who has resided in Australia for more than 20 years. The applicant said she has no contact with her biological father in China. In the 13 or so years the applicant has resided in Australia, she has departed only once. She owns property here and said herself at the hearing that she intends to stay in Australia permanently. The Tribunal has before it no matters that would support a conclusion that the applicant has any incentive at all to return to her home country or that she genuinely considers her time in Australia to be temporary.
The applicant has not provided any evidence that she is receiving critical or vital medical treatment. The applicant was asked whether she had investigated whether she could receive medical treatment in her home country and said that because she has not lived there for a long time she wouldn’t know how to seek treatment there. She has not looked into obtaining the medical treatment she claims to need in China or any other country outside Australia. There was no documentary or reliable evidence before the Tribunal that she must remain in Australia for counselling or therapy. The applicant gave evidence she is not unfit to travel. There appears to be no sound reason why the applicant could not be treated in her home country. Notwithstanding her extended absence from China, she is a Chinese citizen and speaks the language. There is no evidence before the Tribunal that indicates she does not have a valid passport or that she could not obtain one.
The applicant provided no claim or evidence of exceptional, compelling or compassionate circumstances, in her case, that would justify granting the visa.
Other relevant matters
There is a copy of a letter from the applicant’s migration agent on the Department file, dated 11 July 2017. The applicant was taken to it and informed that it contained what the Tribunal considered to be adverse information. The information is that the applicant’s migration agent advised her (and the applicant signed the document indicating she had received and understood the advice) that her visitor visa application for medical treatment was “…on the basis of the instructions and documents provided to us, your application for the grant of a 602 – Medical Treatment is NOT LIKELY TO SUCCEED. Your visa application is unfounded or unlikely to succeed.”
The applicant was given the usual s.359AA warning and asked if she wanted to respond at the hearing or ask for more time. She was told that the Tribunal was concerned that she had been advised her application for the medical treatment visa was unfounded or unlikely to succeed and that may cause the Tribunal to think that because she had done nothing about attending or arranging the treatment, her claim to need the medical treatment may not be genuine. The applicant asked for more time to see a psychologist. She was told that this was not relevant to the adverse information or the concern about it the Tribunal had and, in any event, she had had more than 10 months to see a psychologist which, in the view of the Tribunal was plenty of time to have done so. The Tribunal advised the applicant that her request for more time to see a psychologist was not granted.
The applicant said she signed whatever the agent told her to and said she did not remember getting the advice or signing such a document. The Tribunal said that it is her responsibility to ensure she is aware of the contents of documents she signs and the applicant responded, “that’s my fault”. She was asked if she was suggesting that she was not aware her application was unfounded or unlikely to succeed and said, “Correct”. The Tribunal does not accept that the applicant was unaware of the advice and is satisfied she received the advice and signed the document. The Tribunal does not give credit to her claim that she did not know about the advice when she signed the document. The Tribunal’s view is that the applicant was informed, on the basis of instructions and information provided to the migration agent, and did know her visitor visa application was unfounded or unlikely to succeed. As the applicant has not attended or made arrangements to attend a psychologist, obtain medication for her condition or conditions or seek advice for relaxation therapy and healthy living, matters that were included in the Form 1057 document, the Tribunal is of the view that the applicant lodged the application and does not genuinely intend to get medical treatment or stay in Australian temporarily. There is no evidence before the Tribunal that she has sought or received critical medical treatment since lodging the application, other than to have attend her GP occasionally.
Given the above findings, cl.602.215 is not met.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Jennifer Cripps Watts
Member

ATTACHMENT
Migration Regulations 1994
Schedule 2
602.212 (1)     The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2)All of the following requirements are met:
(a)     the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b)    arrangements have been concluded to carry out the treatment;
(c)     if the treatment is an organ transplant:
(i)the donor of the relevant organ is accompanying the applicant to Australia; or
(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f)     either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3)All of the following requirements are met:
(a)     the applicant seeks to donate an organ for transplant in Australia;
(b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c)     the applicant satisfies public interest criterion 4005;
(d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(e)     either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Support person
(4)All of the following requirements are met:
(a)     the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i)the requirements described in subclause (2) or (3) are met; or
(ii)the requirements described in subclause 675.212(2) or (3) are met; or
(iii)the requirements described in subclause 685.212(2) or (3) are met;
(b)    the person to whom the applicant is to provide support holds:
(i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c)     the applicant satisfies public interest criterion 4005.
Western Province of Papua New Guinea
(5)All of the following requirements are met:
(a)     the applicant is a citizen of Papua New Guinea;
(b)    the applicant resides in the Western Province of Papua New Guinea;
(c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
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.
Financial hardship
(7)All of the following requirements are met:
(a)     one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant holds:
(i)a Subclass 602 visa; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;
(e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;
(g)    the applicant has compelling personal reasons to work in Australia;
(h)    the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8)All of the following requirements are met:
(a)     one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant has compelling personal reasons for the grant of the visa;
(d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).

[2018] AATA 1451

11 April 2018

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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