Hao (Migration)

[2024] AATA 2205

Hao (Migration) [2024] AATA 2205 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jie Hao

CASE NUMBER:  2304623

HOME AFFAIRS REFERENCE(S):          BCC2023/1176008

MEMBER:Wendy Banfield

DATE:14 June 2024

PLACE OF DECISION:  Canberra

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

Statement made on 14 June 2024 at 4:17pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – not medically unfit to depart – multiple physical conditions and medications – long stay, applications for permanent visas refused, period as unlawful non-citizen, multiple bridging visas and debt to commonwealth – treatment available in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 14 March 2023 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 2023. 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 they were not satisfied the applicant was medically unfit to depart Australia and was not satisfied the applicant genuinely intended to remain in Australia temporarily and therefore, he did not meet the criteria in cl 602.215.

4. The applicant appeared before the Tribunal on 23 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant submitted the following evidence to the Department at the time of application:

   ·     Application for a Medical Treatment form dated 16 February 2023.

   ·     Applicant’s People’s Republic of China passport biometric information.

   ·     Form 1507 Evidence of intended medical treatment.

   ·     Response to the Department’s natural justice letter dated 18 February 2023.

6. A copy of the Department’s notification and decision record dated 14 March 2023 was provided to the Tribunal.

   The hearing

7. The applicant attended a hearing and was asked about his reasons for applying for a Medical Treatment visa. The applicant said the Department looked at his immigration history and refused the visa. He was asked what medical treatment he needs in Australia. He responded that he has diabetes and high blood pressure as well as problems with his eyes. The applicant stated he also has complications related to clotting of the blood, capillaries on his legs and shoulder problems.

8. The applicant was asked about current treatment since his medical evidence is from 15 February 2023. The applicant claimed he is seeing a GP and taking medication. It was put to him that to be granted a Medical Treatment visa he needs to demonstrate he intends to have treatment and depart. The applicant stated he has not broken the law and was affected by COVID-19. The applicant said it is difficult to express but he needs long term treatment for his medical problems. He claimed he needs eye surgery and has received an email from the doctor asking him to have his eyes checked for pressure and any lesions on his retina.

9. The applicant said he is in a difficult position because his visa was refused. He indicated he is from a small village in China where the level of health care is not the same. It was claimed a doctor had said the medicines available would not be of the same quality as those he is taking now. The applicant told the Tribunal his main problem is his eyes, and he had an operation once but the damage to his eyes is not reversible. When asked when he had an eye operation, the applicant said he has a referral from a GP to see a specialist. When asked if he was saying he needs a further operation the applicant said his eye problem is under control but is complicated by many variables such as his blood sugar being high. He said he needs to get things done to alleviate the problem.

10. The applicant began to discuss when he came to Australia in 2011 and the issues he had in China. The Tribunal advised it was unable to consider that information as it does not relate to his current application for a Medical Treatment visa. The applicant said his diabetes is a big problem and is irreversible. The Tribunal put to him that he can continue to take medication for it when he departs from Australia. The applicant said he could if it was just diabetes without high blood pressure. He referred again to requiring treatment for his eyes and said doctors in China will not understand.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 is medically unfit to depart Australia and whether he genuinely intends to remain in Australia temporarily for the purpose of the visa.

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

13. 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.

14. The applicant is in Australia and is currently 51 years old. There is no information that would indicate the applicant 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. There is nothing to indicate that any condition the applicant is suffering from would make him medically unfit to depart Australia.

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

16. In assessing the application for a Medical Treatment visa, the Tribunal considered whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In doing so, the Tribunal examined the applicant’s compliance with the conditions of the last held substantive visa or bridging visa, and his intention to comply with the conditions to which the Subclass 602 visa would be subject. The Tribunal also assessed other relevant matters which in this case included the applicant’s immigration history, his personal circumstances in Australia and China and whether he plans to depart after receiving medical treatment.

17. The medical evidence provided to the Department by the applicant consists of a completed Evidence of intended medical treatment form. Under the heading ‘Medical condition requiring treatment’ the form lists Diabetes Mellitus and Hypertension. Under ‘Treatment information’, the form lists three medications. The applicant referred to a need for eye surgery but did not provide any evidence in support of his claims, such a medical diagnosis or surgery recommendation from a treating doctor. The applicant did not provide any independent medical evidence to the Tribunal to support his claims.

18. There is evidence before the Tribunal to indicate the applicant did not comply with the conditions of a previously held substantive visa or bridging visa. Based on his submissions to the Department and the Tribunal and evidence at the hearing, the Tribunal is not satisfied the applicant intends to comply with visa conditions in future. This is because a medical treatment visa requires applicants to depart at the end of a treatment plan or medical consultations. During the hearing the applicant claimed he is planning to return to China but his description of his medical conditions as chronic and requiring ongoing treatment in Australia indicates otherwise.

19. Regarding his circumstances in Australia, the applicant has a son in Australia and has not departed since he last arrived on 17 April 2012. He has an extensive immigration history since 2012 including applications for permanent visas that have been unsuccessful. According to the Department, the applicant’s Tourist (Subclass 600) Visa ceased on 17 July 2012. Since then, he has held 15 successive temporary Bridging Visas including the current Bridging E (Subclass 050) Visa. Departmental systems confirm the applicant has spent time in Australia as an unlawful non-citizen and at the time of decision, had a debt to the Commonwealth of Australia in relation to previous court proceedings.

20. The Tribunal considers the applicant would be able to pursue treatment for his diabetes and hypertension in his home country. The Tribunal is not satisfied the applicant applied for a Medical Treatment visa for genuine purposes or that he genuinely intends to stay temporarily in Australia for the purpose for which the visa would be granted.

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

22. 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

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

    Wendy Banfield
    Member