Kim (Migration)

[2023] AATA 179

Kim (Migration) [2023] AATA 179 (31 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Changjim Kim Kim

REPRESENTATIVE:  Ms Eugenia Anang (MARN: 1279570)

CASE NUMBER:  2105621

HOME AFFAIRS REFERENCE(S):          BCC2021/49660

MEMBER:Rachel Da Costa

DATE:31 January 2023

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 31 January 2023 at 9:48am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – adequate means to cover medical treatment costs – lengthy stay in Australia – family and employment offer in Korea – no evidence of treatment costs – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.216

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 13 April 2021 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 5 April 2021. 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 the delegate was not satisfied that the applicant has adequate means, or access to adequate means, to cover the costs associated with his intended stay in Australia for medical treatment.

4. On 30 April 2021, the applicant applied to the Tribunal for review of the delegate’s decision. He provided a copy of the delegate’s decision to the Tribunal.

5. The applicant was invited to attend a hearing on 2 February 2023 to give evidence and present arguments relating to the issues arising in his case. The hearing invitation letter explained that the Tribunal has considered the material before it but was unable to make a favourable decision on this information alone.

6. On 30 January 2023, the applicant’s representative wrote to the Tribunal informing it that the applicant had declined the offer of a hearing and requested that the Tribunal make a decision based on the information before it.

7. Accordingly, the Tribunal has proceeded to make its decision based on the information before it, which is the information contained in the Department and Tribunal files.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 the period of the intended stay in Australia.

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

10. 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.

11. Based on the bio-data page of the applicant’s Republic of Korea passport which he provided to the Department, the applicant was born in July 1987 which means he is 35 years old. Departmental movement records and other documents provided by the applicant indicate that he is in Australia. Accordingly, the Tribunal finds that the applicant is in Australia and has not turned 50. There is no evidence before the Tribunal to indicate that 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, or that he 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. The Tribunal finds as such. 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. Clause 602.216 provides as follows:

    (1)  The applicant has:

    (a)  adequate means to support himself or herself; or

    (b)  access to adequate means to support himself or herself;

    during the period of the applicant’s intended stay in Australia.

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

13. In the applicant’s Medical Treatment visa application form dated 5 April 2021, he states that his stay in Australia will be self-funded and that he has access to personal funds. The applicant states that he will be under medical care from 5 April 2021 to 5 April 2022. The Form 1507 states that the medical condition requiring treatment is “surgical extraction of wisdom teeth” and the treatment information is “severe dental pain; impacted wisdom teeth; recurrent dental infection; facial swelling”. The form is signed by Dr Fidel Doan of Markets Medical & Dental Centre in Homebush West, New South Wales. The applicant did not provide any further documentation in relation to his proposed medical treatment.

14. On 6 April 2021, the Department wrote to the applicant seeking more information in relation to his application. The letter expressed concern about the amount of time the applicant had already spent in Australia and explained that this gave rise to a concern over whether the applicant is a genuine temporary entrant and his incentive to return to his home country. The letter notes that the applicant has remained in Australia using a succession of temporary visas for many years and that while he has made numerous short departures, he has always returned to Australia and has spent more time onshore than offshore. The letter notes that the applicant has been refused a visa to remain longer in Australia, has unsuccessfully sought review of the Department’s decision and has requested Ministerial intervention regarding his immigration status. The letter requested additional evidence that the applicant maintains an intention to be a genuine temporary entrant and has an incentive to depart Australia.

15. On 6 April 2021, the applicant responded to the Department requesting a Bridging E visa and provided the following documents:

    ·     Commonwealth Bank statement for 22 December 2020 to 20 February 2021, indicating a negative closing balance of -$1045.09;

    ·     Commonwealth Bank statement for 21 February 2021 to 21 March 2021, indicating a closing balance of $404.29;

16. On 11 April 2021, the applicant’s representative responded in writing to the Department’s letter making the following points:

    ·     the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment;

    ·     he has complied with the conditions attached to past visas;

    ·     he has been offered a full-time, permanent employment position as an International Sales Coordinator with KS ELEC in Seoul, South Korea and his scheduled to commence this role on 1 October 2021;

    ·     his parents live in South Korea, which is an incentive for him to return following his medical treatment.

    Copies of the applicant’s letter of employment and Certificate of Family Relations were attached to the email.

17. On 13 April 2021, the Department notified the applicant that his application for a Medical Treatment visa had been refused on the basis that the delegate was not satisfied that the applicant met clause 602.216 of the Regulations. The delegate noted the applicant’s request to remain in Australia until 5 April 2022 and that he would be self-funding his treatment and living costs during this period. The delegate noted that the applicant had provided bank statements showing a balance of negative -$1045.09 and $404.29. The delegate noted that applicants are expected to demonstrate adequate funds to cover their medical treatment and living expenses in Australia for the period of time requested and given the applicant has not shown any available funds, the delegate was not satisfied the applicant is in a position to cover the costs entailed.

18. On 17 November 2022, the Tribunal wrote to the applicant pursuant to s 359(2) inviting him to provide information. Relevantly, the letter provided as follows:

    You applied for the Medical Treatment (Visitor) (class UB) Medical Treatment
    (subclass 602) visa on 5 April 2021.

    With your application you advised the Department you would be self-funding the
    medical treatment as well as your living costs while in Australia.

    You provided the Department with bank statements in support of your application. One
    statement showed an overdrawn balance of $1045.09 DR, with the other showing a
    credit of $404.29 CR.

    As you were unable to show available funds, the Delegate was not satisfied you are in
    a financial position to cover the costs entailed.

    Your application was subsequently refused because you did not meet cl.602.216.
    Clause 602.216 provides that:

    (1) The applicant has:

    a. Adequate means to support himself or herself; or
    b. Access to adequate means to support himself or herself;

    During the period of the applicant’s intended stay in Australia

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

    You are invited to provide the following information in writing, and any evidence in
    support of:

    ·How you intend to support yourself financially while in Australia?

    ·How you intend to fund the medical treatment you are receiving while in Australia?

    [10448161] 359A or 359(2) Invitati
    The information should be received by 1 December 2022.

19. On 1 December 2022, the applicant provided the Tribunal with the following documents in an email from his representative:

    ·     Commonwealth Bank statement for the period 4 August 2022 to 27 August 2022 with a closing balance of $869.51;

    ·     Commonwealth Bank statement for the period 28 August 2022 to 21 September 2022 with a closing balance of $613.33;

    ·     Commonwealth Bank statement for the period 22 September 2022 to 1 November 2022 with a closing balance of $413.90;

    ·     Commonwealth Bank statement for the period 2 November 2022 to 24 November 2022 with a closing balance of $138.59;

    ·     Residential Tenancy Agreement for the period 12 September 2022 to 10 September 2023 naming the applicant as the tenant of a unit in Bathurst St, Sydney, New South Wales with a fortnightly rent of $1500. 

20. In the email, the applicant’s representative requested an extension of time for the applicant to provide further documents. The Tribunal considered the applicant’s request and granted an extension of time until 6 December 2022. No further documents were provided by the applicant.

21. The Tribunal has carefully considered the documents provided by the applicant in support of his application. Given the applicant declined the invitation to attend a hearing, the Tribunal has not had the opportunity to discuss these documents with the applicant and to ask him questions about his proposed medical treatment. Based on the documents provided, the credits to the applicant’s bank account are irregular the source of the funds is not clear to the Tribunal. It does not appear that the applicant has a regular income and the Tribunal cannot assess the reliability of the source of the funds. The Tribunal notes that in his Medical Treatment visa application form the applicant refers to having access to “personal funds” but the nature and extent of those funds is not clear.

22. Each of the bank statements provided show the applicant has a low, or negative, balance at the end of the statement period. The applicant has not provided any evidence of the cost of his proposed medical treatment (surgery for extraction of impacted wisdom teeth) and what it would involve. For example, it is not clear whether the applicant would require hospitalisation for his medical procedure and for what period of time, whether one or more procedures would be required, and whether any preliminary or post-treatment procedures may be required. The Tribunal cannot guess or make an estimate of what the cost of treatment may be in the absence of any evidence provided by the applicant about this. The Tribunal notes that there is no evidence to suggest that the applicant has already undertaken the proposed treatment.  

    Findings

23. In light of the above, given the low closing balance of the applicant’s bank account at the end of each statement period, the lack of transparency about the source and reliability of the applicant’s funds and the lack of evidence about the cost of the applicant’s proposed medical treatment, the Tribunal is not satisfied that the applicant has adequate means, or access to adequate means, to support himself during the period of his intended stay in Australia.

24. Having considered all the evidence before it, the Tribunal finds that the applicant does not have adequate means, or access to adequate means, to support himself during the period of his intended stay in Australia.

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

26. The Tribunal notes that the Department’s letter to the applicant dated 6 April 2021 expressed concern about whether the applicant has a genuine intention to remain temporarily in Australia and his incentive to return to his home country (cl 602.215). Based on the material before it, the Tribunal shares this concern, however as it has not had the opportunity to discuss this with the applicant and to give him the opportunity to comment or respond the Tribunal makes no findings in this regard.

    Conclusion

27. 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

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

    Rachel Da Costa
    Member