Hoang (Migration)

[2022] AATA 1454

Hoang (Migration) [2022] AATA 1454 (26 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tien Dat Hoang

CASE NUMBER:  2014039

HOME AFFAIRS REFERENCE(S):          BCC2020/2083948

MEMBER:Naomi Schmitz

DATE:26 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 26 May 2022 at 11:26am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary entrant – 359A and 359(2) Invitation – non-appearance before the Tribunal – migration history – past non-compliance with visa conditions – application for permanent residency – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A, 360, 363A, 379A
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 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 13 August 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. On 26 August 2020 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.

4. On 16 September 2020 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 1 April 2022 the Tribunal wrote to the applicant to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 11:00am on 21 April 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant. The applicant was also requested to provide information pursuant to s.359(2) by 19 April 2022. The applicant did not provide a response within the time limit and the hearing was cancelled on 20 April 2022.

6. The Tribunal further considered its letter of 1 April 2022 and was not satisfied of its validity. For these reasons the Tribunal on 10 May 2022 rescheduled a hearing for 27 May 2022 at 11:30am.

7. On 10 May 2022 the Tribunal also sent a s.359A notice requesting the applicant to comment on or respond to information that would be a reason or a part of the reason for affirming the decision under review. This information was that:

   The particulars of the information are:

   1.     Departmental records show that you were granted a Student (Subclass 573) visa on 12 September 2013 which was subject to the following conditions:

   (a)   8202 Continues Studying

   (b)   8533 Notify Address

   (c)   8501 Health Insurance

   (d)   8105 Work Limitation

   (e)   8516 Maintain Eligibility

   (f)    8517 Dependants Education

   2.     Departmental records show that you failed to comply with the conditions of your Student visa including that you failed to commence studying and failed to pay fees. This resulted in the cancellation of your Student visa on 30 August 2016.

   This information is relevant to the review because Clause 602.215(1)(a) requires the Tribunal to have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa.

   3. Departmental records show that you have made three applications for [permanent] visas, two of which were found to be invalid and another made [in] October 2019 which was refused [in] December 2019. You subsequently sought administrative review at the Tribunal [in] January 2020. The Tribunal found it had no jurisdiction [in] April 2020 as timeframes were not met. You then made an application for judicial review [in] May 2020 at the Federal Court of Australia concerning that decision which is yet to be determined.

   This information is relevant to the review because your migration history suggests that you wish to stay permanently in Australia.

8. The invitation to comment on or respond to information requested a response by 24 May 2022 and advised if the applicant did not comment on or respond to the information in writing by 24 May 2022, the Tribunal hearing scheduled on 27 May 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act. The applicant did not comment on or respond to the information pursuant to s.359A of the Act.

9. In the same letter of 10 May 2022 which invited the applicant to comment on or respond under s.359A of the Act, the Tribunal also invited the applicant to provide information under s.359(2) of the Act to address the following:

   ·Immigration records demonstrate that your last arrival in Australia was on 1 October 2013 on a Student visa (subclass 573). Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   ·In your medical treatment visa application lodged on 13 August 2020, you claimed that you would like to remain in Australia from 11 August 2020 until 5 August 2021 to seek medical treatment for psychological treatment and psychiatric therapy at an estimated cost of $6,000.00. Why have you not departed Australia since 5 August 2021?

   ·The Tribunal does not have information concerning your medical treatment. Please provide information regarding:

   oWhen you were first diagnosed with those condition(s);

   oWhat your current medical treatment for those condition(s) involves;

   oThe prognosis of your medical condition(s); and

   oWhen does the medical treatment you have undertaken end or when is it due to end?

   ·Noting you have been in Australia since 1 October 2013 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

10. The request for information advised the applicant that if the information was not provided in writing by 24 May 2022, the Tribunal hearing scheduled on 27 May 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear before it.[1] The applicant did not provide information as requested in the invitation issued pursuant to s.359(2) of the Act.

    [1] s.360(3) of the Migration Act 1958 (Cth)

11. On 20 May 2022 an SMS hearing reminder was sent to the applicant’s mobile phone. The Tribunal subsequently received an undelivered notification. [2] In relation to the hearing scheduled on 21 April 2022, the Tribunal made several efforts to contact the applicant. On 14 April 2022 the Tribunal attempted four times to contact the applicant by telephone to conduct a Microsoft Teams test dial which was to be used to conduct the hearing by video-conference. All attempts were unsuccessful. On 20 April 2022 the Tribunal sent an SMS hearing reminder which subsequently returned an undelivered notification.[3] The Tribunal has not received any communication or documents from the applicant since he filed his application for review on 16 September 2020. There is no representative on the record.

    [2] Tribunal Case Note Number 6 and 7

    [3] Ibid Case Note Numbers 1-5

12. As the applicant did not comment on or respond to information pursuant to s.359A of the Act and did not provide information pursuant to s.359(2) of the Act, the applicant no longer had a right to appear before the Tribunal pursuant to s.360(3). The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear.[4] On 25 May 2022 the hearing was cancelled and the applicant was notified by email.

    [4] Hasran v MIAC [2010] FCAFC 40

13. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), using the contact information provided by the applicant. Further, from reviewing the chronology of communications, the Tribunal is satisfied that sufficient efforts were made to contact the applicant. Of significance, there has been no communication from the applicant in approximately one year and eight months, a significant period of time. The Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review. In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal. [5]

    [5] s.359C of the Migration Act 1958 (Cth)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

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

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. 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.

17. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born on 24 February 1994 and is thus currently 28 years of age. The applicant has applied for a permanent visa, namely a [subclass] visa that was refused. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    602.215

    (1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

    (b)  whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

    (c)  any other relevant matter.

    (2)  However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

18. The delegate’s decision record detailed the applicant’s migration history.

19. The applicant first arrived in Australia on 1 October 2013 as a holder of Student (Subclass 573) visa. The applicant’s Student visa was cancelled on 30 August 2016. The applicant has not departed Australia since.

20. Whilst in Australia the applicant has made three applications for permanent visas, namely [subclass] visas. The applicant’s first two applications for [subclass] visas were invalid. The applicant applied for a third [subclass] visa that was refused. The applicant subsequently sought administrative review at the Tribunal [in] January 2020. [In] April 2020, the Tribunal found it had no jurisdiction as the relevant timeframes were not met. The applicant subsequently sought judicial review [in] May 2020 at the Federal Court of Australia which is yet to be determined.

21. The delegate’s notice also notes there was information available to the department that since arriving in Australia the applicant has been involved with criminal matters and has received convictions. The delegate sent the applicant a natural justice letter regarding his migration history, but the applicant did not respond.

22. On 18 August 2020 the applicant was issued with a bridging visa which remains in force and which has an 8101 ‘no work’ condition.

    VISA APPLICATION

23. The applicant identified that he was in Australia. He is a citizen of Vietnam. He was born in Ha Tinh, Vietnam. At the time of application, the applicant wrote the purpose of his stay in Australia was medical treatment. His stay would be self-funded stating ‘I have sufficient fund to support myself for medical treatment’. He indicated he would be under medical care for approximately one year from 11 August 2020 until 5 August 2021 to seek treatment for ‘psychological treatment and psychiatric therapy. The estimate cost is $6,000’.

24. Attached to the visa application was a 1507 Form signed by Dr Thomas Luong on 5 August 2020. It detailed the medical condition requiring treatment as ‘psychiatric therapy’. The treatment information was ‘anti-depressant therapy and psychological therapy’. No other medical information was provided with the application or in connection with the review.

25. At the time of application, the applicant declared that he had never been married. In the applicant’s visa application he stated that he had overstayed his Student visa and had a visa refused or cancelled.

    FINDINGS and REASONS

26. In the present case, the visa applicant seeks the visa for the purposes of medical treatment for ‘anti-depressant and psychological therapy’. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

27. As outlined above, departmental records show that the applicant did not comply with two conditions of his previous Student visa, namely failing to commence studying and failure to pay fees, which resulted in the cancellation of the applicant’s visa.[6] The Tribunal invited the applicant to comment on the non-compliance of his Student visa pursuant to s.359A, but received no response. As the breach was serious enough to result in the applicant’s visa being cancelled, the Tribunal is satisfied that the applicant did not substantially comply with the conditions to which his last substantive visa was subject. The Tribunal places adverse weight on the applicant’s past conduct in this regard.

    [6] s.359A Notice sent on 10 May 2022

28. The Tribunal also has serious concerns that the applicant will not comply with the conditions to which the Medical Treatment visa would be subject, namely the ‘no work’ condition and will need to work to fund his stay. The Tribunal has had regard to the applicant’s claims that he is ‘self-funded’, but there is no evidence or explanation provided by the applicant as to the source of these funds and how he has managed to survive in Australia without resorting to work. This is particularly in light of the applicant having a ‘no work condition’ attached to his bridging visa and given the applicant’s alleged counselling expenses of $6000.00. The Tribunal has also considered this in the context of the applicant claiming to have no ‘relatives, friends or contacts in Australia’.[7] Accordingly, the Tribunal is not satisfied that the applicant would comply with the no work condition.

    [7] Applicant’s Departmental file BCC20202083948 – Visa application form

29. The Tribunal has also considered the applicant’s claims regarding medical treatment in Australia. The applicant has not provided any current or other relevant evidence which indicates that he is undergoing medical treatment and that he intends to stay temporarily in Australia for the purposes of medical treatment. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 signed on 5 August 2020. Over one year and nine months have passed since that document was completed and no updates on treatment have been provided. The Tribunal considers the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) indicates that the applicant did not apply for the visa for medical treatment, but did so to maintain an ongoing residency in Australia.

30. Further there is no evidence that the applicant could not receive medical treatment including psychological therapy in his home country. There is also no evidence before the Tribunal that the applicant is not able to purchase anti-depressants or some similar medication in Vietnam. As such, the Tribunal is not persuaded that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, medical treatment, but intends to continue an ongoing residence in Australia.

31. The Tribunal has taken into account that the applicant has been given the benefit of remaining in Australia on a bridging visa 030 well beyond the time he had requested
    (5 August 2021), namely over nine months, by virtue of the time it has taken to bring this matter to review and despite this additional time, there is no evidentiary material that the applicant has made any efforts to seek medical treatment for his depression and mental health issues. Consequently, this raises doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, but intends to continue an ongoing residence in Australia.

32. This is further supported by the applicant’s migration history, which indicates that the applicant arrived in Australia on 1 October 2013 and has remained onshore continuously for over eight years and seven months and has not departed. The applicant has applied for permanent residency on multiple occasions, including three [subclass] visas. As outlined above the first two applications were invalid and the third application was refused by the delegate. The applicant subsequently sought administrative review at the Tribunal which was unsuccessful. The applicant subsequently sought judicial review with his case yet to be finalised. His conduct in seeking a permanent visa indicates that he seeks to remain permanently or indefinitely in Australia. The Tribunal places adverse weight on the applicant’s migration history.

33. There is no information or evidence before the Tribunal regarding the applicant’s personal and economic circumstances that would encourage him to return to his home country at the end of the proposed stay. For example, the applicant’s family composition, his relationship with his family members, the applicant’s job prospects in Vietnam or assets. Further, the Tribunal notes the applicant is now 28 years of age having first come to Australia as a 19-year-old. The applicant has spent over eight and a half years in Australia, a significant period of time. The Tribunal considers that the applicant has now spent a good part of his adult years in Australia and that starting over in Vietnam will present challenges to the applicant. On the basis of the applicant’s migration history and the information submitted in his visa application, the Tribunal does not have confidence, and is not satisfied, that his personal circumstances are conducive to him returning to his home country.

1. Overall, the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

2. Given the above findings, cl.602.215 are not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa decision.

   DECISION

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

   Naomi Schmitz
   Member