Ho (Migration)

[2024] AATA 713

Ho (Migration) [2024] AATA 713 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chi-Chan Ho

CASE NUMBER:  2302054

HOME AFFAIRS REFERENCE(S):          BCC2023/322607

MEMBER:Louise Nicholls

DATE:25 March 2024

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 25 March 2024 at 11:12am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – evidence of financial capacity – funds to cover medical treatment and living expenses – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.216

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is 28 years old and a citizen of Taiwan. The applicant first arrived in Australia on a Working Holiday (TZ-417) visa on 1 April 2017.

2. The applicant applied for a Medical Treatment (602) visa on 18 January 2023. He provided a a Form 1507 “Evidence of Intended Medical Treatment” completed by Hong Niu dated 9 January 2023 and a copy of the biodata page of his Taiwanese passport issued on 6 February 2017.

3. At the time of application, 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).

4. On 3 February 2023, the delegate of the Minister for Home Affairs refused the application for a Medical Treatment (602) visa under s.65 of the Migration Act 1958 (Cth) (the Act) on the basis that the delegate found the applicant did not meet cl.602.216 of the Regulations. The delegate was not satisfied that the applicant had sufficient evidence to demonstrate financial capacity for his stay.

5. This is an application for review of that decision, and it was made on 16 February 2023. The review applicant provided a copy of the delegate’s decision record dated 3 February 2023 together with the application.

6. On 19 January 2024 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 March 2024. On 5 March 2024 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 adequate means, or access to adequate means, to support himself during his intended stay.

   Does the applicant have access to, or adequate means of support?

9. Clause 602.216 requires the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia. 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.

10. The applicant provided the delegate with a copy of his Taiwanese biodata passport page which showed a date of birth in 1995. The applicant also stated his date of birth in his application for the visa and this date was consistent with the date of birth set out in his passport. Based on this evidence, the Tribunal finds that the applicant has not turned 50 years of age.

11. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.216 does apply.

12. In the application for the medical treatment visa the applicant stated that his stay in Australia would be self-funded from savings. He estimated that he would be under medical care from 18 January 2023 to 18 January 2024. He stated that he would be receiving massage therapy from Hong Guang Niu from My Health Massage in the Met Centre, George Street Sydney to address shoulder and back pain but did not provide any estimate of his medical costs. The applicant did not provide any other material to support evidence of how he would fund his proposed stay.

13. The delegate’s decision, which was provided to the Tribunal, notes that the applicant had not provided any additional evidence to support his claim that he had sufficient funds to cover the cost of medical treatment and living expenses during his proposed stay. The applicant has not provided any further evidence or material to the Tribunal which might address this issue.

14. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant has adequate means, or access to adequate means, to support himself during the period of the intended stay in Australia.

15. Given the above findings, cl 602.216 is not met.

    Conclusion

16. 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

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

    Louise Nicholls
    Senior Member