Hong (Migration)

[2022] AATA 3636

Hong (Migration) [2022] AATA 3636 (1 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ok Hee Hong 
Mr Yong Ryool Cho

CASE NUMBERS:  2100073
2100076

HOME AFFAIRS REFERENCE(S):          BCC2020/2723855
BCC2020/2723852

MEMBER:Naomi Schmitz

DATE:1 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Medical Treatment (Visitor) (Class UB) visas.

Statement made on 01 September 2022 at 8:53am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – unlawful non-citizen for over 15 years – adverse migration history – made no arrangements to return home – not satisfied applicants have a genuine intention of staying temporarily in Australia for medical treatment – Tribunal does not support Request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360

Migration Regulations 1994, 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 decisions made by a delegate of the Minister for Home Affairs on 15 December 2020 to refuse to grant the applicants Medical Treatment (Visitor) (Class UB) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 November 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 applicants the visas because the delegate was not satisfied that the applicants had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted under cl. 602.215.

4. On 4 January 2021 the applicants applied to the Tribunal for a review of the refusal decisions. The applicants provided a copy of the delegate’s decision records to the Tribunal.

5. On 15 July 2022 the applicants were invited under s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decisions under review, namely the applicants’ migration histories and time onshore in Australia. The notice stated that the applicants’ migration histories suggested that the applicants wished to stay permanently in Australia.

   Mr Cho (2100076)

   1. Your migration records indicate that:

   (a)   You arrived in Australia on 21 August 1990 on a Class UA subclass V11 visa which ceased on 21 February 1991. You have not departed since your date of arrival.

   (b)   After 21 February 1991 you remained unlawfully in Australia until you were then granted a bridging visa Class WC subclass 030 on 1 September 1994 which ceased on 19 July 1995 and was the first of a series of bridging visas granted to you until present day. There were also further periods between the granting of bridging visas where you did not hold a visa and were unlawful.

   (c)   On 20 December 1993 you applied for a [visa].

   (d)   On 29 June 1995 you applied for a ‘[permanent] visa’ as a dependent. This was refused on 22 May 1996. You were renotified of this refusal decision on 4 February 2013. The notification was returned to the Department on 29 April 2013. On 18 March 2015 it was effectively renotified.

   (e)   On 10 June 1999 you were a participant in a Class Action Judicial Review and Merits Review. You withdrew from this on 26 June 2003.

   (f)    On 20 December 1993 you lodged a ‘[visa]’ application. This was refused on 21 May 1994. You applied for review of the refusal decision. On 31 May 1995 this was affirmed. On 3 June 2003 you applied for the Minister to exercise powers under s.417. On 15 March 2004 this request was finalised as not considered.

   (g)   On 23 February 1998 you applied for a ‘[named] visa’. This was refused on 17 March 2011. On 29 June 2012 you applied to the Minister to exercise powers under s.417. On 17 March 2014 this request was finalised as not considered.

   (h)   On 16 April 2014 you applied for a [permanent] visa. This was refused on 16 December 2014. You applied for judicial review. The review was dismissed on 11 July 2018.

   (i)    On 16 June 2016 you applied to the Minister to exercise powers under s.417. On 20 June 2016 this request was finalised as not referred.

   (j)    On 13 November 2017 the Tribunal referred the applicant to the Minister to exercise powers under s.417. On 14 November 2017 the request was finalised as not referred.

   (k)   On 21 August 2018 you applied for a medical treatment visa which was refused on 5 September 2018, which was affirmed on review by the Tribunal on 27 October 2020.

   (l)    On 28 November 2020 you applied for a medical treatment visa which was refused on 15 December 2020, for which you applied for review and is currently under review by this Tribunal.

   2. Your migration history indicates that you have maintained an ongoing residence in Australia for approximately 32 years, since your arrival on 21 August 1990 by making multiple visa applications and seeking avenues of review including administrative and judicial.

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

   3. During your time in Australia, you have been an unlawful non-citizen for over 15 years.

   This information is relevant to the review because your illegal status raises doubts that you have a genuine intention of staying temporarily in Australia and suggests that you wish to stay permanently in Australia.

   Mrs Hong (2100073)

   1.   Your migration records indicate that:

   (a)You arrived in Australia on 21 August 1990 on a Class UA subclass V10 visa which ceased on 21 February 1991. You have not departed since your date of arrival.

   (b)After 21 February 1991 you remained unlawfully in Australia until you were then granted a bridging visa Class WC subclass 030 on 1 September 1994 which ceased on 19 July 1995 and was the first of a series of bridging visas granted to you until present day.

   (c)On 29 June 1995 you made an application for a [permanent] visa which was refused on 22 May 1996. You were renotified of the refusal on 4 February 2013. The notification was returned to the Department on 29 April 2013. On 18 March 2015 you were successfully notified of the refusal decision.

   (d)On 10 June 1999 you were a participant in a Class Action Judicial Review and Merits Review. You withdrew from this on 20 June 2003.

   (e)On 20 December 1993 you lodged a ‘[visa]’ application as a dependent. This was refused on 21 May 1994. You applied for a review of the refusal decision on 21 June 1994. The refusal decision was affirmed on 31 May 1995. On 3 June 2003 you applied to the Minister to exercise powers under s.417. On 15 March 2004 this request was finalised as not considered.

   (f)On 29 June 2012 you applied to the Minister to exercise powers under s.417. On 17 March 2014 this request was finalised as not considered.

   (g)On 1 April 2014 you applied for a [visa] as a dependent. On 16 December 2014 the [visa] was refused. You sought judicial review of the refusal decision. On 11 July 2018 the judicial review was dismissed.

   (h)On 16 June 2016 you applied to the Minister to exercise powers under s.417. On 20 June 2016 this request was finalised as not considered.

   (i)On 13 November 2017 the Tribunal referred the applicant to the Minister to exercise powers under s.417. On 14 November 2017 the request was finalised as not considered.

   (j)On 22 August 2018 you applied for a medical treatment visa which was refused on 5 September 2018, which was affirmed on review by the Tribunal on 27 October 2020.

   (k)On 28 November 2020 you applied for a medical treatment visa which was refused on 15 December 2020, for which you applied for review and is currently under review by this Tribunal.

   (l)Your migration history indicates that you have maintained an ongoing residence in Australia for approximately 32 years, since your arrival on 21 August 1990 by making multiple visa applications and seeking avenues of review including administrative and judicial.

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

   2.     During your time in Australia, you have been an unlawful non-citizen for approximately over three years, six months.

   This information is relevant to the review because your illegal status raises doubts that you have a genuine intention of staying temporarily in Australia and suggests that you wish to stay permanently in Australia.

6. The second reason was to request under s.359(2) of the Act that the applicants provide the Tribunal with information to address the following: [1]

   [1] The request for information pursuant to s.359(2) was sent to each applicant. However due to the applicant’s arriving in Australia on the same date; requesting the same period for medical treatment; the Tribunal requesting the same information from each applicant; and for ease of reading this decision record, the invitation to provide information pursuant to s.359(2) has been combined in paragraph [6] to cover each applicant.

   Mr Cho and Mrs Hong

   1.     Immigration records demonstrate that your last arrival in Australia was on 21 August 1990 on a Class UA visa (subclass V10). Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   2.     In your medical treatment visa application lodged on 28 November 2020, you claimed that you would like to remain in Australia from 23 November 2020 until 22 November 2022 to seek medical treatment for knee surgery, cardiac check-up and anaemia with no estimate of cost given. What incentives do you have to depart Australia after 22 November 2022?

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

   a.     When you were first diagnosed with those condition(s);

   b.     What your current medical treatment for those condition(s) involves;

   c.     The prognosis of your medical condition(s); and

   d.     When does the medical treatment you have undertaken end or when is it due to end?

   4.     Noting you have been in Australia since 21 August 1990 please provide any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

7. The invitation to comment on or respond to information and request for information advised that if the applicants did not comment on or respond to the information put to them under s.359A and did not provide information pursuant to s.359(2) in writing by 29 July 2022, the Tribunal hearing scheduled on 3 August 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any further steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act.

8. On 18 July 2022 the Tribunal invited the applicants to appear at a joint hearing commencing at 9:30am on 3 August 2022. The Tribunal was required to do this because it had considered the information it had before it and was unable to make a decision favourable to the applicants.

9.    On 19 July 2022 the Tribunal received a request from the applicant’s representative[2] that an extension to comment on or respond to information, to provide information and a hearing postponement be granted for approximately two weeks due to the representative being overseas and returning to Australia on 27 July 2022.

[2] The applicants’ son.

1. Subsequently on 19 July 2022, the Tribunal advised that the Tribunal Member had considered the requests carefully but decided not to postpone the hearing or grant the review applicants an extension of time to comment on or respond to information or provide information. Of significance the Tribunal Member noted that the representative would return to Australia two days prior to the expiry date for responding to and providing information due on 29 July 2022. There was also no evidence submitted to support that the review applicants in the representative’s absence could not consider and compile any response or information which could then be submitted upon the representative’s return to Australia. The Tribunal Member further noted that the review applicants have lived in Australia for approximately 32 years and have applied for previous Medical Treatment visas and therefore have some prior experience and knowledge of Medical Treatment visas. The Tribunal Member also understood from the review applicant’s files, that there were various family members residing in Australia who could assist the review applicants. In addition, the Tribunal Member noted that the review applicants applied for the Medical treatment visas on 28 November 2020 and therefore have had approximately 20 months to collate evidence or information in support of their applications for review and, in the Tribunal’s view, have had ample time and opportunity. Finally, the Tribunal Member noted that the request to postpone did not identify what documents the review applicants were seeking further time to adduce, what the documents provided evidence of and the relevance of the documents to the applications for review.

2. On 29 July 2022, the representative provided a word document containing the following information in response to the s.359A and s.359(2) notices.

   1. My youngest son was at high school, and we had no-one to look after him. So we could not leave him alone here.
   2. Since the lodge of application, Covid19 got worse and everyone was in lockdown for a long time. And being an elderly, we were advised to remain home to prevent from getting virus and being sick. Within that period our health condition got worse and had to receive many kinds of medical assistance from our doctors as you can see from the medical report. Below is what we spent approximately for our medical treatment.

   Yong Ryool Cho

   30/07/21 Lens Extraction + Anaesthetic $2490
   30/07/21 CT Scan $350

   Ok Hee Cho
   05/02/19 Knee Replacement Surgery + Accommodation $6596+$7095
   07/02/20 Radiology – Spiral Angiography $510
   11/04/20 Concord Repatriation Hospital $4925.05
   08/06/20 Dr.Lee Chatswood $256
   08/08/20 Hornsby Kuringgai Hospital $4858
   03/08/20 Hospital Test $466.75
   01/09/20 Dr.Richard (implanted pacemaker) $239
   05/10/21 Westmead Prosthesis $11978
   21/04/22 Specialist Dr.Kim $270
   09/05/22 Diagnostic Imaging $410
   23/05/22 RPA Hospital $315.75
   11/06/22 Canterbury Hospital $5008
   19/05/22 Strathfield Private Hospital $1872.453.

   3. As you can see from medical report, we still need more time for treatments.

   4. We agree with all immigration history. We first started living here for better education for my children and now as we are unwell and getting all treatments we need here with my children and grandchildren living here makes us very comfortable. We understand that Korea is medically advanced but to be honest we are afraid of going back to Korea for treatment as we need ongoing treatment for medicines, blood test, ECGs, etc. When we get better (and we will deliberately get better) with the conditions to fly 10+ hours, we will go back to Korea.

3. On 29 July 2022 the representative also provided an updated letter from Dr Juwon Won dated 25 July 2022 which stated the applicants suffer from the following conditions:

   a.Mr Cho: Hypertension and aortic regurgitation (high blood pressure) since 2013; Paroxysmal atrial fibrillation (rapid heart palpitations) and is on warfin therapy since 2015; he requires cardiologist check-ups as well as blood testing to maintain cardiac and general health; Type 2 diabetes; Cataract and epiretinal membrane since 2019; and right knee degenerative arthritis since 2005; and

   b.Mrs Hong: Moderate to severe mitral valve disease that requires intensive cardiac check-up as well as regular blood testing to maintain therapeutic warfarinsation. This was diagnosed in May 1996; severe degenerative arthritis of knees. This was diagnosed in 2013 and has been deteriorating since then. She has undergone multiple knee surgeries in the past, left medical unicompartmental knee replacement in 2019; severe anaemia; that required urgent admission and transfusion in April 2022 and is under the care gastroenterologist for further evaluation and treatments. This has not been resolved yet. She suffered a right ischaemic small vessel stroke in January 2020.

4. Dr Won’s report also stated that:

   a.   Mrs Hong has ‘significant mobility difficulties’ as well as her ongoing multiple medical conditions and would have great difficulties with prolonged travelling.

   b.   They also require ongoing intensive involvement of carers, currently being provided by their children as well as other members of the family, which have been an essential part of their medical and psychological support. It is without doubt that part of their health would and be severely affected if such provision of care by their family is compromised by any sudden separation of Mr and Mrs Cho from their family members.

   c.   I urge the department Immigration to show empathy and consideration to Mr and Mrs Cho and allow them to remain in Australia as their health will be gravely affected by any possible disruption from current medical and social setting. 

5. On 1 August the representative advised the Tribunal that he had COVID-19 and asked about the hearing options.

6. On 2 August 2022 the Tribunal advised as the hearing was to be conducted by video via Microsoft Teams, the hearing could still proceed as scheduled and physical attendance at a Tribunal location was unnecessary. The Tribunal advised if any participants believed that they were too unwell to participate in the hearing due to illness, a medical certificate specifying that the person cannot participate in the hearing should be provided to the Tribunal as soon as possible. The Tribunal did not receive any medical certificate from the representative.

7. Later on 2 August 2022 the representative advised that his nephew would assist the review applicants and attend the hearing.

8. The applicants Mr Cho and Mrs Hong appeared before the Tribunal at a joint hearing on 3 August 2022 to give evidence and present arguments. The applicants consented to a joint hearing. The Tribunal also received oral evidence from the review applicant’s nephew. Mrs Hong’s matter proceeded on 3 August 2022; however, Mr Cho’s review was unable to proceed due to him having a hearing impairment. Mr Cho’s matter was adjourned part-heard until 9:30am on 11 August 2022 where he attended in-person at the Tribunal in Sydney. The representative having recovered from COVID also attended in-person on 11 August 2022 and gave evidence. The hearings on 3 and 11 August 2022 were conducted with the assistance of an interpreter in the Korean and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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.

1. The applicants are currently residing in Australia. Documents provided by the applicants show that the applicants have turned 50, Mr Choi being born in 1942 and is thus currently 80 years of age. Mrs Hong was born in 1949 and is thus currently 72 years of age. Both applicants have applied for multiple permanent visas while in Australia, [which] have been refused. The Tribunal has no evidence before it that the applicants are 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.

2. The delegate’s decision records detailed the applicants’ migration histories.

3. The s.359A notices referred to in paragraph [5] above and the delegate’s decision records detailed the applicants’ migration histories. Mr Cho and Mrs Hong both arrived in Australia on 21 August 1990 and have not departed since, remaining continuously onshore for over 32 years. They have applied for multiple [permanent] visas which have been refused and pursued avenues of review, including administrative and judicial review. The applicants have both applied for Ministerial Intervention which has been not considered. Mr Cho and Mrs Hong have applied for two previous Medical Treatment visas.

   VISA APPLICATION and EVIDENCE AT HEARING

4. According to the two visa application forms, Mr Cho and Mrs Hong are both citizens of the Republic of South Korea and are married. Mr Cho’s visa application declared that he seeks medical treatment for ‘hypertension, paroxysmal atrial fibrillation, knee surgery and cardiac’ Mrs Hong’s visa application declared that she seeks medical treatment for ‘knee surgery, cardia check-up and anaemia’. Both applicants claimed that they would be financially supported by their son (the representative). Both applicants sought to be in Australia for medical treatment from 23 November 2020 until 22 November 2022.

5. In relation to Mr Cho, attached to the visa application was a 1507 Form signed by Dr John Won on 3 November 2020 from the Redmyre Medical Centre. It detailed the medical condition requiring treatment as ‘monitoring his cardiac condition, regular adjustment of warfarin’. The treatment information was ‘INR check-up and bilateral knee rehabilitation and coordinating specialist cares and treatments’. At hearing Mr Cho stated he sought to remain in Australia for surgery to his eye and knee.

6. In relation to Mrs Hong, attached to the visa application was a 1507 Form signed by Dr John Won on 3 November 2020 from the Redmyre Medical Centre. It detailed the medical condition requiring treatment as ‘monitoring her cardiac condition, regular adjustment of warfarin’. The treatment information was ‘cardiac medications, bilateral knee rehabilitations + intending total knee replacements and regular monitoring of her anaemia’. At hearing Mrs Hong gave evidence that she had previously had surgery to her left eye and now sought to remain in Australia for medical treatment to her right eye and pelvis. She stated that she had lost eyesight in her right eye and had difficulty walking due to her pelvis. Mrs Hong claimed to have a CT scan at 2.00pm on 3 August 2022.

7. Mr Cho and Mrs Hong both gave evidence that they have a total of four children, including two sons and a daughter who reside in Australia and a daughter who resides in South Korea. In Australia they also have 11 grandchildren and various extended family members. The applicants currently reside with the representative and his family in New South Wales and are financially supported by their children. The applicants confirmed their two sons and grandchildren were Australian citizens but were unsure as to the migration status of their daughter who had a pending visa application. Both applicants stated that their daughter in South Korea was financially struggling and that their family in Australia could provide a better life for them. Both applicants stated that they had no assets in Australia other than Mr Cho owning a motor vehicle. Mr Cho confirmed he had no assets in South Korea. Neither of the applicants are employed. Mr Cho gave evidence that he formerly worked as a carpenter in South Korea and in Australia approximately 10 years ago. Mrs Hong gave evidence that she never worked in South Korea and was a housewife and mother.

8. The applicants were both asked why they would not be able to receive medical treatment in South Korea, noting that South Korea has one of the best health care systems in the world. Both applicants were evasive and did not directly answer the question. Mr Cho stated that he had no support network in South Korea and that he would have to find new doctors in South Korea and that all his medical conditions had been diagnosed and treated in Australia. Mrs Hong replied that that she now lived in Australia and had done so for 30 years and that if she returned to South Korea, she would have no place to stay and no one other than her daughter to look after her. Her daughter did not have the financial capacity to do so.

9. Both applicants confirmed that they had made no arrangements to return home to South Korea. This is despite Mr Cho giving evidence that he has received four COVID-19 vaccinations. Both applicants were asked, given their [permanent] visas had been refused and their applications for Ministerial Intervention not considered, what their plans were once their Medical Treatment visas expired. Mr Cho claimed once physically better and fit to travel he would return home. He however qualified this, stating that he would not return to South Korea without his wife, as they are a married couple who have been married for 53 years. Mrs Hong asked to stay another two years in Australia to save money, ‘get better’ and claimed she would then leave. During her evidence she also referred to having cardiac problems and was unsure if she could return by plane. Mrs Hong’s nephew gave evidence of Mrs Hong having a pacemaker and blood transfusion and having difficulty travelling. He referred to Dr Won’s report dated 25 July 2022.  

10. The Tribunal Member asked both applicants why they still needed the visa given they had had approximately one year and eight months since the time of application, 28 November 2020 to seek medical treatment. Mr Cho initially gave evidence that was non-sensical and confusing. The representative subsequently explained that Mr Cho had been unable to get medical care due to the prohibitive cost and the applicant’s family spending approximately $50,000 on Mrs Hong’s healthcare expenses which meant they had inadequate funds to pay for Mr Cho’s medical treatment. The representative explained that Mrs Hong’s condition worsened, and they had to prioritise her healthcare over Mr Cho’s. Mr Cho had also been unable to obtain medical treatment due to the COVID-19 pandemic and elective surgery being postponed. Mrs Hong claimed that ‘I continuously have new medical issues that arise’ and that she needed to remain in Australia to obtain medical treatment.

11. The Tribunal Member told the applicants that the Member had reviewed the applicants’ migration histories which suggested that they wished to stay permanently in Australia and would not leave. Mr Cho provided conflicting evidence, on the one hand he stated he would return home to South Korea ‘when better’, but on the other hand stated he wanted to watch his grandchildren grow [in Australia]. Mrs Hong claimed that ‘that was then’ and that once she is recovered, she will return home. The Tribunal also notes the response in paragraph [11] where the applicants state they are afraid to return to home to South Korea and other contradictory evidence at hearing, including the applicant’s evidence that they do not wish to return to South Korea as they have extensive family in Australia, a financial support network, the length of residence in Australia, and their impecunious daughter who has no financial capacity to support them in South Korea.

12. At hearing the Tribunal Member asked the applicants why they had remained as unlawful non-citizens, for over 15 years for Mr Cho and in relation to Mrs Hong for approximately three years and six months. Mr Cho replied that he was living with his children who were responsible for his visa. Mrs Hong replied, ‘I don’t know what happened’ and that she left her visa matters to her husband.

13. The representative gave evidence that his parents originally arrived in Australia in 1990 after his younger brother and sister migrated to Australia. The representative arrived in Australia in 1996. His parents decided to overstay and had the help of the Korean Community Church. To date his parents have been unable to complete their medical treatment due to the prohibitive cost. He stated the applicants wanted the medical treatment visas so they were no longer a financial burden on him. He stated he is planning eye surgery and later knee surgery for Mr Cho but has had to delay his surgery due to medical expenses for his mother. He stated that his parents genuinely want to return to South Korea once they are better, however the representative wants them to remain in Australia for the next one to two years for their treatment so he can support them. The representative sought ministerial intervention pursuant to s.351 of the Act on compassionate circumstances and relied on their age and health concerns that would result in serious, ongoing, and irreversible harm and continuing hardship to the person if they had to leave Australia.

    FINDINGS and REASONS

14. In the present case, the applicants seek the visas for the purposes of seeking medical treatment including for Mr Cho monitoring his heart/cardiac issues and undergoing eye and knee surgery. In relation to Mrs Hong, seeking surgery for her right eye and pelvis and ongoing monitoring of her knee and cardiac/heart issues. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212. The Tribunal is satisfied from the medical materials provided that both applicants have a number of medical problems.

15. There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicants last substantive visa or any bridging visas held. There is no evidence suggesting that the applicants do not intend to comply with conditions which may attach to the visa. The Tribunal is also satisfied that due to the applicant’s advanced age, the language barrier, and the financial support provided by the applicant’s representative, that the applicants will abide by the conditions of the Medical Treatment visa.

16. The Tribunal has also considered other relevant matters. Mr Cho and Mrs Hong first arrived in Australia on 21 August 1990. Since that time, the applicants have maintained a continuous residence in Australia for over 32 years, a significant period of time which the Tribunal places adverse weight on.

17. This is further supported by Mr Cho’s and Mrs Hong’s migration histories, which indicate that both applicants have applied for permanent residency, [on] multiple occasions and subsequently sought avenues of review including administrative and judicial review which were unsuccessful. The applicants have also sought Ministerial Intervention on various occasions and thereafter applied for a series of temporary visa, namely Medical Treatment visas, which were also refused. The applicants’ conduct in seeking a permanent visa indicates that the applicants both seek to remain permanently or indefinitely in Australia. The Tribunal places adverse weight on the applicants’ migration histories.

18. The applicants have also both had long periods of being an unlawful non-citizens. In relation to Mr Cho, over 15 years and in relation to Mrs Hong, approximately three years and six months, both significant periods of time which the Tribunal places adverse weight on. The Tribunal has had regard to Mr Cho and Mrs Hong’s respective explanations that Mr Cho left his migration matters to his children and Mrs Hong delegated to her husband, but does not accept their oral assertions, as ultimately it is the applicant’s responsibilities to ensure that they maintain a lawful status in Australia. From the applicants’ migration histories, it appears that the applicants are prepared to disengage themselves from immigration authorities and only make themselves visible when it suits their purposes. Consequently, the Tribunal has serious concerns that the applicants wish to continue to remain in Australia and that they will continue to do so, even if it means they will become unlawful as they have previously done. This is particularly so given their avenues for remaining in Australia have narrowed.

19. This is further supported by the applicants’ written response[3] and oral evidence at hearing that they have resided in Australia for over 32 years, have an established life, a substantial family network who provide them with care, accommodation, and financial support. Although Mr Cho and Mrs Hong are respectively on temporary visas, as they are in Australia the Tribunal has concerns they will each act as an incentive for the other to remain in Australia. This was particularly clear from Mr Cho’s evidence who on a number of occasions stated ‘I won’t leave wife behind’. They also have various doctors that they have obtained diagnosis and treatments from who they wish to retain as their health care practitioners. In contrast, there is limited family in South Korea, namely their daughter who has financial problems. The applicants also gave evidence that they would encounter significant inconvenience and difficulty finding new medical practitioners to treat their various health ailments in South Korea. The Tribunal has also had regard to Mr Cho and Mrs Hong’s oral assertions that they will return ‘once better’, however does not accept these claims when viewed with their living conditions in Australia, family support and migration histories where they have remained for over three decades.

    [3] Applicant’s response to s.359A notice on 29 July 2022

20. The Tribunal has had regard to Mr Cho’s evidence and the representative’s submission that financial constraints and the COVID-19 pandemic have inhibited Mr Cho’s ability to obtain medical treatment since the time of application and accepts Mr Cho’s oral assertion and the representative’s submission. The Tribunal also accepts Mrs Hong’s evidence that she has continually emerging medical issues. However, when considered with all the other evidence, the Tribunal is not satisfied that Mr Cho and Mrs Hong have a genuine intention of staying temporarily Australia for medical treatment.

21. Of significance, the Tribunal notes that Mr Cho is 80 years of age and Mrs Hong 72 years of age, having first come to Australia as a 48-year-old and 40-year-old respectively. The Tribunal considers that the applicants have now spent a good part of their adult years in Australia, including living with their son and that starting over in South Korea will present challenges to the applicants. This is particularly in light of their daughter in South Korea having financial difficulties, the fact that the applicants are no longer employed, and their advanced age. On the basis of the applicants’ migration histories and the information submitted in their visa applications, the Tribunal does not have confidence, and is not satisfied, that the applicants’ personal and/or economic circumstances are conducive to them returning to South Korea. Overall, the Tribunal finds that the conditions in Australia are such that they might encourage the applicants to remain here.

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

23. Given the above findings, cl.602.215 is not met. Based on the cumulative findings above, the applicants do not meet the requirements for the grant of the visa.

    MINISTERIAL INTERVENTION

24. In this case, the applicant’s son submitted that the visa applicants’ personal factors were ‘unique and exceptional compassionate circumstances’ existed. He relied on their various health ailments and advanced age and lack of support network in South Korea.

25. The Tribunal has considered the evidence of the Mr Cho and Mrs Hong’s cases and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal is satisfied that the set of circumstances as outlined above are not unique or exceptional. Whilst the Tribunal appreciates the current difficult circumstances of the visa applicants, this is not sufficient grounds to seek intervention at Ministerial level.

26. The Tribunal does not support the Request for Ministerial Intervention. The Tribunal notes that the visa applicants can both make a request directly to the Minister with the assistance of their son. 

    decision

27. The Tribunal affirms the decision not to grant the applicants Medical Treatment (Visitor) (Class UB) visas.

    Naomi Schmitz
    Member