Kurucz (Migration)

[2023] AATA 573

Kurucz (Migration) [2023] AATA 573 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zeno Kurucz

CASE NUMBER:  2205735

HOME AFFAIRS REFERENCE(S):          BCC2022/1062826

MEMBER:Joseph Lindsay

DATE:9 February 2023

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 9 February 2023 at 1:42pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant does not genuinely intend to remain in Australia on a temporary basis–adverse migration history– maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 602.215

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 12 April 2022 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 16 March 2022. 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 Tribunal invited the applicant to participate in a hearing with the Tribunal to discuss his application and any evidence in respect to his application. However, the applicant wrote back to the Tribunal to advise that he would not participate in a hearing, and he gave his consent for the Tribunal to make a decision based on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant provided a copy of the Department’s decision to the Tribunal, and the Tribunal has considered that decision. In that decision, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted and found that the applicant did not satisfy clause 602.215 in Schedule 2 of the Regulations.

6. The Department’s decision states:

   Departmental records demonstrate that:

   The applicant arrived in Australia on 03 October 2007 holding a Student (subclass 572) visa and has not departed since then.

   Whilst onshore the applicant has applied for and been granted a further 5 Student (subclass 572) visas.

   Prior to the applicant's visa ceasing, they applied for and were granted a Medical Treatment (subclass 602) visa.

   Shortly prior to this visa ceasing the applicant applied for a seventh student visa and this was refused on 10 May 2018. The applicant remained in Australia and sought review of the department's decision. The Department's decision was affirmed by AAT on 06 November 2019.

   The applicant went on to seek judicial review and the Federal Court found in the Minister's favour on 16 July 2020.

   Following this the applicant made the application for a second Medical Treatment (subclass 602) visa, which was refused on 21 August 2020 and the applicant has unsuccessfully sought review of this decision at the AAT.

7. The Department wrote to the applicant about these concerns but had no response. The applicant has not provided the Tribunal further information in respect to these concerns.

8. The duty of the Tribunal is to make a fresh decision on the information available to the Tribunal.

9. The Tribunal has considered the applicant’s application. The Tribunal accepts that the applicant wishes to access mental health support and treatment in Australia.

10. The Tribunal accepts that the applicant’s migration history is as stated in the Department’s decision. The Tribunal accepts:

    ·The applicant arrived in Australia on 03 October 2007 holding a Student (subclass 572) visa and has not departed since then.

    ·Whilst onshore the applicant has applied for and been granted a further 5 Student (subclass 572) visas.

    ·Prior to the applicant's visa ceasing, they applied for and were granted a Medical Treatment (subclass 602) visa.

    ·Shortly prior to this visa ceasing the applicant applied for a seventh student visa and this was refused on 10 May 2018.

    ·The applicant remained in Australia and sought review of the department's decision.

    ·The Department's decision was affirmed by AAT on 03 November 2019.

    ·The applicant went on to seek judicial review and the Federal Court found in the Minister's favour on 16 July 2020.

    ·Following this the applicant made the application for a second Medical Treatment (subclass 602) visa, which was refused on 21 August 2020 and the applicant has unsuccessfully sought review of this decision at the AAT.

11. In consideration of this information, the Tribunal is not satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal finds that the applicant’s migration history strongly indicates his intent to stay in Australia permanently, and the Tribunal places high weight on this finding against the applicant. Accordingly, the applicant does not satisfy clause 602.215 in Schedule 2 of the Regulations.

12. 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

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

    Joseph Lindsay
    Member