Guan (Migration)

[2022] AATA 1801

Guan (Migration) [2022] AATA 1801 (20 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuan Guan

REPRESENTATIVE:  Miss Vivien Wei Wei Wang (MARN: 0853910)

CASE NUMBER:  2007345

HOME AFFAIRS REFERENCE(S):          BCC2020/1019620

MEMBER:Moira Brophy

DATE:20 May 2022

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 20 May 2022 at 2:04pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – outstanding debt to the Commonwealth paid off – lengthy stay in Australia – immigration history – family commitments in China – overwhelming fear of flying – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.217; Schedule 4, Public Interest Criteria 4004

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 3 April 2020 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 5 March 2020. 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 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 Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by either telephone or video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal by way of a video link on 21 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Background

8. The applicant is a citizen of China and is currently 60 years old. At the time of the application, she was living in Sydney, Australia.

9. 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 completed by Dr Aldrin K S Tai requiring treatment for medical condition: Panic disorder with agoraphobia, depression, and anxiety disorder. Fibromyalgia, and the treatment being psychotherapy from Keith Kong, Psychiatrist Dr Zhuling Miao and Rhumatologist Dr Herman. The period requested for the treatment was 5 March 2020 to 1 March 2022.

10.   On 14 February 2022 the Tribunal wrote to the applicant advising she had a debt to the Commonwealth in the amount of $3606.00 for outstanding litigation costs from a previous matter. The applicant was advised the information was relevant to the review because this would be a reason, or part of the reason for affirming the decision under review as the criteria in cl. 602.217(1) requires an applicant to meet Public Interest Criteria 4004. This provision requires that the applicant does not have any outstanding debts to the Commonwealth unless the Minister is satisfied appropriate arrangements have been made.

11. In that same letter the Tribunal set out the applicant’s immigration history and advised the information outlined concerning her immigration history was relevant to the review currently before the Tribunal as it may lead the Tribunal to find that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of undertaking medical treatment and that she therefore does not meet cl. 602.215 in Part 602 of Schedule 2 of the Migration Regulations 1994 (Cth) including Clause 602.215(1)(a)- (b). Information from the Department of Home Affairs showed the applicant’s immigration history as follows:

• On 13 July 2012, the applicant last arrived in Australia as the holder of a

Visitor (subclass 676) visa and has not departed Australia since that date.
which was granted on 30 October 2012.
685) visa, which was granted on 05 April 2013.
602) visa, which was refused on 04 March 2014. The applicant sought avenues
of review for the refused application including an appeal to the Federal Court,
which resulted in the applicant requesting withdrawal, on 31 March 2017.
section 351, which was determined not considered, on 15 May 2017.
visa. This application was refused on 20 March 2019. The applicant sought a
review of the refused application. However, it was determined the applicant
had No Jurisdiction by the Administrative Appeals Tribunal (AAT), on 05
February 2020.

• On 10 October 2012, the applicant lodged a Visitor Tourist (subclass 676) visa,

• On 18 December 2012, the applicant lodged a Medical treatment (subclass

• On 24 December 2013, the applicant lodged a Medical treatment (subclass

• On 28 April 2017, the applicant lodged a Ministerial Intervention (MI) under

• On 20 March 2019, the applicant lodged a Medical treatment (subclass 602)

• The applicant applied for the present visa on 5 March 2020.
• The applicant currently holds a Bridging visa E (subclass 050) visa.

1. The applicant was given time to respond to the matters raised and a response was received on 14 March 2022.

2. At the time of hearing the Tribunal was satisfied the monies outstanding had been paid.

3. The applicant sought additional time to provide the Tribunal with further medical evidence.

4. On 4 May 2022 the applicant provided a report from her rheumatologist Dr Herman. Dr Herman opined the applicant was suffering from:

   • Panic disorder with agoraphobia
   • Major depressive disorder secondary to anxiety disorder, with somatic symptoms
   • Fibromyalgia
   He went on to say ‘ Mrs Yuan Guan is a patient of mine with the above conditions. Her panic disorder, agoraphobia, anxiety, and depression have remained severe and disabling since I last saw her in 2019. She had made some progress with Chinese herbal therapy, psychotherapy and yoga exercises up until the COVID-19 pandemic. COVID-19 pandemic has resulted in severe deterioration of her mental state both in terms of depression and anxiety. She is intolerant to numerous psychotropic medications as described by her psychiatrist. She is intolerant to benzodiazepine. She is terrified with the idea of COVID-19 vaccination and she has remained isolated at home for the last 3 years. She has a relative who had severe adverse reaction to COVID-19 vaccination and is currently in intensive care because of that. Furthermore, there is a strong family history of thromboembolic disease and
   she is concerned that she would develop such complication from COVID-19 vaccination. This has resulted in severe deterioration of her anxiety state, and she reports frequent episodes of panic attacks, and widespread somatic symptoms and pain.
   She continues to have widespread musculoskeletal and visceral pain consistent with fibromyalgia.
   Unfortunately, there is no treatment for this condition as she is intolerant to numerous psychotropic
   medication.
   She had made some progress with Chinese herbal therapy, psychotherapy, and yoga exercises. This is probably the most appropriate management plan.’

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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.

7. The Tribunal is satisfied from departmental records and from the evidence given by the applicant at the time of hearing, the applicant has not applied for a permanent visa since arriving in Australia. That being the case, there is no need to consider the remainder of the requirements.

8. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

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

9. 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.

10. The application form (Form 48ME) contains a series of questions which asks the applicant how long he seeks to remain in Australia (Q15), for what period will he be under medical care (Q17), to describe the medical treatment he has arranged (Q18), and to give details of his doctor/hospital in his home country and in Australia (Q19 and Q20) and the funding for his stay (Q26).

11. At the time of application, the applicant stated he wished to remain in Australia for the period from 5 March 2020 to 1 March 2022 to obtain medical treatment from Keith Kong Psychologist, Psychiatrist Dr Zhuling Miao and Rheumatologist Dr Herman.  The original form 1507 submitted with the application and completed by the treating doctor Dr Aldrin K S Tai was dated 4 March 2020. Dr Tai opined the applicant had ‘panic disorder with agoraphobia, depression and anxiety disorder and fibromyalgia’ and that this condition would require ongoing treatment. In her application the applicant stated she wished to remain in Australia for 12 months for medical treatment in order to receive ongoing treatment for his medical health condition as described by her doctor.

12. At the time of hearing the applicant told the Tribunal she was living with her daughter. They lived in a rented apartment in Sydney. The applicant has only one child, her daughter in Australia and in China she has her father who is 91 years old. She contributes to the rent here from savings she has in China.

13. The applicant said it was not her intention to remain Australia. She wanted to return to China where she owned her own apartment, she would not have a language barrier to overcome, and she would be able to spend time and care for her elderly father. She said on two occasions she has tried to return to China, but she had been prevented from returning by her health problems. She said while she had been sick before the flights were scheduled to depart it had been flight staff who had stopped her from flying. The applicant said that in October 2015 she had defied the advice of her doctors and decided to return to China. Her apprehension at having to board the flight led to permanent loss of her digestive functions which proved the advice of her doctor had been correct. She said she had nearly died of constipation and she had an allergy the medication she had been given. She developed a cyst on her liver. She said she had turned to natural therapies and was fortunately able to find a nutritionist who had saved her life. She had included a receipt from her nutritionist in the documents she had provided. The treatment she has requires her to spend at least ten hours a day in the kitchen preparing the foods she requires. The Tribunal was mindful that much of the evidence given by the applicant as to her illnesses and the treatment regime she had been pursuing was corroborated by the medical report of Dr Herman provided by the applicant following the hearing.

14. When put to the applicant that she had been here for the extended time period she had initially sought, she agreed, and agreed she would be able to follow the nutritionist’s plan in China.

15. The Tribunal raised as an issue with the applicant its concerns that her immigration history, including the fact that she had lived in Australia since July 2012 without a substantive visa, and her history tended to indicate that she applied for the medical treatment visa to extend her stay in Australia and not because she intended seeking medical treatment in Australia.

16. 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. In assessing intention, the Tribunal has considered the fact the applicant has adhered to the conditions on her present bridging visa.

17. The applicant agreed her visa history was a problem for her. She said she was not able to leave Australia at the present time because of her overwhelming fear of flying and the panic attacks she had when having to board a plane. The Tribunal considered this submission but considering her immigration history was not persuaded her intention was to stay in Australia on a short-term basis.

18. Accordingly, after taking into account the evidence on file and the evidence given at the time of hearing, the Tribunal finds it is not satisfied that the applicant meets the requirements for the visa. The Tribunal has considered the medical evidence and the oral testimony of the applicant given at the time of hearing but on the evidence considered in its totality the Tribunal is not persuaded that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

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

    DECISION

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

    Moira Brophy
    Member