HE (Migration)

HE (Migration) [2017] AATA 2859 (19 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jingxin HE
CASE NUMBER:  1709212
DIBP REFERENCE(S):  BCC2017/1215199
MEMBER:Linda Symons
DATE:19 December 2017
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 19 December 2017 at 5:44pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Not a witness of truth – No medical evidence – Not medically unfit – Working in a warehouse
LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, cls 602.211, 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 7 April 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 to the Department of Immigration and Border Protection (the Department) for the visa on 29 March 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 was not satisfied that the visit was for medical or related purposes or that the applicant has a genuine intention to stay temporarily for the purpose of the visa. On 27 April 2017, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 8 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issues in this case are whether the applicant satisfies the requirements of cl.602.211, cl.602.212 and cl.602.215.
Is the visit for medical or related purposes?
Clause 602.211 requires that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
In his application for the Medical Treatment visa, the applicant stated that he had been “under medical assessment” and “further medical treatment with arrange by my further surgery” (sic) in response to question 18 about the medical treatment he had arranged in Australia. He provided the Department with a copy of a one sentence letter dated 23 January 2017 from a Medical Centre in Campsie. This letter stated that he attended the Medical Centre on 23 January 2017 with “acute neck and right arm pain which could be from nerve impingement from cervical spine”. He did not provide the Department with any further evidence.
At the beginning of the hearing before the Tribunal, the applicant stated that he would like to provide some evidence to the Tribunal. When asked what evidence he would like to provide, he stated that he would like to provide the diagnosis from his doctor and a medical report. When asked what the diagnosis was, he responded that he did not keep a record. When asked what medical report he wished to provide, he responded that he will see his General Practitioner and get a medical report and a plan.
The Tribunal wrote to the applicant on 14 November 2017 inviting him to attend a hearing on 8 December 2017 and requesting that he provide the Tribunal with any additional documents or information he may wish to rely on during the hearing by 1 December 2017. He did not provide the Tribunal with any documents. Despite this, the Tribunal gave him an additional week after the hearing to provide medical evidence. He did not provide any medical evidence to the Tribunal by 15 December 2017 or request any additional time to do so.
During the course of the hearing, the applicant gave evidence that he suffered an injury at the end of February 2017 or beginning of March 2017. When asked how he suffered that injury, he responded that he got on a crowded bus, someone pushed him and he fell over. He stated that he woke up that night and had pain in his right arm. He stated that he saw a General Practitioner in Campsie and was told that he did not have any injuries. He then stated that he just had a stiff neck. The Tribunal notes that the letter from the General Practitioner that he provided the Department is dated 23 January 2017.
The applicant gave evidence that he then consulted a Chinese herbalist who told him that he does not require surgery but needs to do some exercises to recover. He stated that he is unable to move his neck on one side and then proceeded to move his neck from side to side while demonstrating that he was unable to move his neck. He stated that he has been seeing the Chinese herbalist for massages and has seen him on about eight to ten occasions. When asked why he needs a Medical Treatment visa, he responded that it is mainly because the Chinese herbalist suggested that he should not go on a long flight because it was not good for his cerebral vertebrae and might cause other problems. When asked why he applied for a Medical Treatment visa until 20 March 2018, he responded that he does not know why he gave that date.
The applicant has not provided the Department or the Tribunal with any medical evidence to indicate that he has received medical treatment in Australia or is currently receiving medical treatment or that he requires medical treatment in the future. He has not provided any medical evidence that a long flight would be injurious to his health. In his visa application, he stated that he required surgery. During the hearing, he gave evidence that he was told by a General Practitioner that he did not have any injuries and by a Chinese herbalist that he does not require surgery. His evidence is that the Chinese herbalist he consulted has given him some exercises to do and gives him massages. The Tribunal is of the view that he should be able to get these treatments in China. His evidence is that he applied for the Medical Treatment because the Chinese herbalist suggested that he should not go on a long flight.
Having considered all the evidence, the Tribunal is of the view that the applicant is not a witness of truth. The Tribunal finds that he did not apply for this visa for the purpose of undergoing surgery or seeking any other medical treatment in Australia. The Tribunal does not accept that his Chinese herbalist suggested that he should not go on a long flight. The Tribunal is not satisfied, on the evidence before it, that the applicant seeks to remain in Australia temporarily for the purpose of medical treatment or for related purposes.
Given the above findings, the requirements in cl.602.211 are not met.
Is the applicant unfit to depart Australia?
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(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The evidence before the Tribunal indicates that the applicant was born on 15 June 1969. The Tribunal finds that he is 48 years old and has not turned 50 years of age. He is therefore unable to meet the requirements of cl.602.212(6)(b) and accordingly cannot meet the requirements of cl.602.212(6).
Given the above findings, the requirements in cl.602.212(6) are not met.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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).
The applicant gave evidence that after he suffered an injury on the bus he started working at a warehouse in Hurstville on a casual basis. He stated that the warehouse is owned by his landlord and he works there two to three days a week doing stocktaking and looking after the warehouse. He stated that he is paid $150.00 per day. He stated that he needs to work to pay for his expenses. He stated that his friend told him that his Bridging visa allows him to work in Australia. He stated that he trusts his friend and he is a good friend.
The records of the Department indicate that the applicant was granted a Bridging visa on 30 March 2017. This visa is subject to condition 8101 – No work. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it appeared that he is in breach of his Bridging visa. The Tribunal noted that this may lead it to the conclusion that he does not satisfy the requirements for this visa and that he wants to stay in Australia so that he can work here and not because he requires medical treatment.
The applicant responded that remaining in Australia and working is not part of his plan. He stated that he is working to pay his expenses. He stated that he is helping his landlord to do some necessary work within his limits. He stated that he respects Australian law. He stated that he apologises if he has breached the law. He stated that when he was granted the Bridging visa his friend told him that he can work in Australia. The records of the Department indicate that the Department wrote to him on 30 March 2017 informing him that he had been granted a Bridging visa and that it was subject to condition 8101. The words “NO WORK” were written in bold letters. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and he declined to comment on or respond to this information.
Having considered all the evidence, the Tribunal notes that the applicant’s own evidence is that he did not apply for the Medical Treatment visa to seek medical treatment in Australia but because a Chinese herbalist suggested that it would not be good for him to go on a long flight. The only “medical treatment” he is receiving is massages and he has been advised to do some exercises. These are things he can do in China. He has provided no medical evidence that he is actually undergoing this “medical treatment” or that it would be detrimental to his health to take a long flight. Despite his evidence that he does not want to apply for permanent residence in Australia and wants to make a quick recovery and return to China, he was unable to explain why he applied for a Medical Treatment visa for 12 months. Despite his claims that he suffered an injury as a result of being pushed in a crowded bus, he has been working in a warehouse in breach of condition 8101 of his Bridging visa.
The Tribunal finds that the applicant is working in a warehouse in Hurstville in breach of condition 8101 of his Bridging visa. The Tribunal does not accept that he was told by his friend that his Bridging visa allowed him to work in Australia or that he was unaware that his Bridging visa was subject to a “no work” condition. The Tribunal finds that he did not apply for the Medical Treatment visa to seek medical treatment or for a related purpose. The Tribunal does not accept that his Chinese herbalist suggested that he should not go on a long flight. For the reasons given above, the Tribunal has found that he is not medically unfit to depart Australia as defined in cl.602.212(6).
Accordingly, the Tribunal finds that the applicant has not complied substantially with condition 8101 of the Bridging visa held by him. In view of his failure to comply with the condition attached to his Bridging visa, his reasons for working, his reasons for applying for the Medical Treatment visa, his inability to explain why he applied for a Medical Treatment visa for 12 months and the Tribunals concerns about his credibility, the Tribunal is not satisfied that he intends to comply with the conditions to which the Medical Treatment visa would be subject. Therefore, the Tribunal is not satisfied that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
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.
Linda Symons
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).

[2017] AATA 2859

19 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction