Li (Migration)

[2023] AATA 1058

Li (Migration) [2023] AATA 1058 (24 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yingting Li

CASE NUMBER:  2211864

HOME AFFAIRS REFERENCE(S):          BCC2022/2334655

MEMBER:Naomi Schmitz

DATE:24 April 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 24 April 2023 at 4:32pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – migration history – periods of unlawful residence – medical evidence provided – balance of family in home country – COVID-19 travel restrictions – unfit to depart Australia alone – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 360, 362
Migration Regulations 1994, Schedule 2, cls 602.212, 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 28 July 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 23 June 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 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 15 August 2022, 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 3 April 2023, the Tribunal invited the applicant under s.359A of the Act to comment on or respond to information that would be a reason or a part of the reason for affirming the decision under review, namely the applicant’s migration history and time onshore in Australia. The notice stated that the applicant’s migration history suggested that the applicant wished to stay permanently in Australia, including what is set out below:

   1.Your migration records indicate that:

   (a)   You arrived in Australia on 20 February 2019 on a Visitor visa (Subclass 600). Apart from a brief departure in June 2019, you have remained in Australia.

   (b)   You were granted further Visitor visas (Subclass 600) on 16 April 2019, 25 February 2020, and 13 January 2021. The last of which ceased on 13 July 2021. You have been granted a series of Bridging visas since then.

   (c)   On 23 June 2022 you applied for a Medical Treatment visa (Subclass 602) and this application was refused on 28 July 2022. You made an application for review of this refusal at the Tribunal on 15 August 2022 and this is the application under review in the current proceeding.

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

   2.You remained unlawfully in Australia from 14 July 2021 until 20 July 2021, and from 18 June 2022 until 26 June 2022. 

   This information is relevant to the review because your past 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 Tribunal also on 3 April 2023 and in the same letter invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:

   1.You arrived in Australia on 20 February 2019 and apart from one brief departure in June 2019, 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 23 June 2022, you claimed that you would like to remain in Australia from 27 June 2022 to 25 September 2022 to seek medical treatment for dementia worsened by depression and age which was 82 years at the time of application. Why did you not depart Australia after 25 September 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.The nature and estimated duration of the treatment;

   c.The proposed date(s) of treatment;

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

   e.The cost of your treatment.

   4.Noting you have been in Australia since 20 February 2019 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 applicant did not comment on or respond to the information put to her under s.359A and did not provide information pursuant to s.359(2) in writing by 17 April 2023, the applicant would lose any entitlement she might have had under the Act to appear before the Tribunal to give evidence and present arguments. 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 12 April 2023, the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing by video-link commencing at 9:00 am (ACT time) on 27 April 2023 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.

9. On 17 April 2023, the applicant returned a document responding to the s.359(2) invitation to provide information which is summarised at [25] below. The applicant also returned a response to hearing invitation which stated that the applicant had hearing and comprehension difficulties.

10. On 18 April 2023, the applicant sent a photograph of a medical prescription 30 Mirtazapine (30mg)[1] dated 8 February 2023 and box of Mirtazapine dispatched to the applicant on 6 April 2023.

    [1] Mirtazapine is an anti-depressant

11. On 19 April 2023, the Tribunal wrote to the applicant and advised that the Tribunal Member had considered the applicant’s response to the hearing invitation which indicated that the applicant had hearing and comprehension difficulties. The Tribunal Member further noted from the applicant’s Form 1507 and information provided in her visa application, that the applicant is suffering from dementia. The Tribunal Member also noted the applicant’s medication, which is a strong anti-depressant that causes drowsiness. The Tribunal Member therefore had serious concerns regarding the applicant’s capacity to participate at the hearing. The Tribunal Member therefore did not propose to hear evidence from the applicant. The Tribunal requested the applicant to advise whether she would like another family member to appear at the hearing on her behalf, or, alternatively, whether the applicant consented to the Tribunal making a decision on the papers without holding a hearing. The applicant was asked to provide a response by 21 April 2023.

12. On 20 April 2023 the applicant advised the Tribunal the following:

    Thank you for your letter dated 19/Apr/2023. I have considered your options in relation to attending the hearing. I am comfortable with the outcome being advised to me without me attending the hearing. Please let me know if you need anything else from me prior to the hearing.

    Regards [applicant]

13. On 21 April 2023, the Tribunal wrote to the applicant confirming receipt of her email dated 20 April 2023, consenting to the Tribunal making a decision on the papers without holding a hearing. The applicant was advised that the hearing scheduled for 27 April 2023 had therefore been cancelled. The Tribunal would write to the applicant once the Tribunal Member had made her decision.

14. The Tribunal has proceeded to decide the review application on the evidence available to the Tribunal.[2]

    [2] Section 362B [Part 5] Migration Act 1958 (Cth)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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 turned 50, being born in August 1939 and is thus currently 83 years of age. The applicant has not applied for a permanent visa while in Australia which 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 s.359A notice referred to in paragraph [5] above and the delegate’s decision record detailed the applicant’s migration history.

    Visa Application

19. The applicant identified that she was in Australia, residing in the Australian Capital Territory (ACT) with her daughter and son-in-law. She is a citizen of China. At the time of application, the applicant wrote that the purpose of her stay in Australia was for medical treatment. She claimed her stay would be funded by her daughter and son-in-law. In support she provided a Commonwealth Bank of Australia bank statement from July 2021 until 30 December 2021 with a closing balance of $35,074.91. The applicant indicated that she would be under medical care for approximately three months from 27 June 2022 until 25 September 2022. The applicant claimed that she was required to undergo ‘thorough medical examinations’, due to her age (82 years at the time of application); the COVID-19 situation in China; and the applicant’s dementia and depression which she claimed had worsened.

20. At the time of application, the applicant declared that she was a widow. She further declared that she had always complied with the conditions to which her visas were subject and had not overstayed her authorised period of stay in Australia. She claimed she had a previous visa refused.[3]

    [3] Department file: BCC20222334655 – Applicant’s visa application

21. Attached to the visa application was a Form 1507 signed by Dr Muhammad Islam of the Gungahlin Medical Practice on 22 June 2022. It detailed the medical condition requiring treatment as ‘Dementia worsened by depression’. The treatment information stated, ‘Referral to geriatrician (specialist) for further management’. Also attached was a Rowland Universal Dementia Assessment Scale (RUDAS) dated 22 June 2022 in which the applicant scored 10/30 confirming dementia with short-term memory loss and impaired judgement. Also attached was a medical prescription for Mirtazapine 15mg tablet (an anti-depressant) dated 22 June 2022.

22. The Tribunal has had regard to the applicant’s response to the Department’s natural justice letter which submitted that the applicant had a genuine intention of staying temporarily in Australia. The applicant relied upon the following factors:

    a.The applicant has a substantial family network in China, including a daughter, a sibling and other close relatives and maintains regular communication with her daughter;

    b.In contrast, the applicant has only one immediate family member, a daughter (one of two daughters) who resides in Australia;

    c.The applicant is heavily involved in the Chinese community in China;

    d.The applicant wishes to return to China to reconnect with her family and friends, along with her fondness for China’s climate; and

    e.The applicant wishes to remain in Australia temporarily to seek medical treatment and that she wishes to return to China upon her treatment being completed.

23. The response also claimed the applicant prolonged her stay in Australia due to the COVID-19 pandemic and border closures and the applicant’s inability to independently travel back to China due to her age and state of health. She also had an unsuccessful review at the Tribunal in relation to a visa refusal.

    Information to the Tribunal

24. The Tribunal was provided with consultation notes recorded by Dr Islam dated 17 June 2022 which detailed:

    New patiemt (sic) with daughter who feels she is depressed.

    Lost youngest sister in China and now not eating much or going outside for a walk.

    feels sleeps well and doesn't want to mix with people including lost interest in video call to China.

    Daughter helps her in ADL including showers as fear of fall but denies any recent falls

    Not on any regular medications except multivitamin.

    C/O knee pain

25. The Tribunal was also provided with consultation notes recorded by Dr Islam on 22 June 2022. In summary, this confirmed the administration of the RUDAS test referred to in [19] above. The applicant ‘remained sad looking with poor communication and long term hearing deficit reported by daughter’. Advice for hearing tests with hearing aid use as required after discussion.

26. The Tribunal was provided with the following documents:

    a.Consultation notes recorded by Dr Islam on 29 June 2022. In summary, the applicant’s sleep had improved but not her mood. Discussion about increasing her anti-depressant from 15mg to 30mg;

    b.A patient health summary dated 8 August 2022 showing the applicant’s Mirtazapine dose was increased from 15mg to 30mg to be taken before bed;

    c.Referral to Dr Basil Lau (geriatrician) for memory impairment dated 16 June 2022;

    d.A statement from the applicant’s daughter and son-in-law dated 22 August 2022:

    ·      The applicant has remained in Australia due to ‘abnormal circumstances’ including  the COVID-19 pandemic and administrative review in relation to a previous visa refusal;

    ·      The applicant is a genuine temporary entrant as she has no close friends in the Chinese community in Australia, cannot speak English; maintains communication with her other daughter in China by online video; has an 80 year old sister and relatives in China who want to see her; and the applicant dislikes the climate in Melbourne and Canberra;

    ·      Medical treatment is too expensive in Australia and the cost of living is higher in Australia than China;

    ·      The applicant has medical insurance and reimbursement for insurance in China;

    ·      The applicant’s daughter is awaiting the grant of her Partner (Subclass 820/801) visa therefore claims she cannot depart Australia to accompany the applicant;

    ·      The applicant cannot return to China as she is incapable of independent travel; and

    ·      The applicant suffers from depression and memory loss.

    e.Further prescriptions and boxes of Mirtazapine dispatched to the applicant; and

    f.Consultation notes recorded by Dr Islam on 8 February 2023. ‘Reports not much improvement after taking 30mg Mirtazapine daily. Still home bound with poor social interaction and oral intake’.

    Response to s.359A and s.359(2) Invitation

27. The applicant did not respond to the s.359A invitation. In relation to the s.359(2) invitation in summary she provided the following information.

    a.Question 1: The applicant has remained in Australia to ‘spend time and see my daughter’. The applicant applied for multiple entry visas as she was hoping her daughter could accompany her to visit New Zealand. The Melbourne COVID-19 lockdowns impacted on the applicant’s ability to return home. The applicant is from Wuhan China and at her age she is ‘very fearful’.

    b.Question 2: The applicant sought administrative review in relation to a visa refusal. The applicant’s daughter married in November 2021. The applicant’s daughter and son-in-law want to apply for a Parent visa for the applicant in due course and that was the main reason they applied to the Tribunal in relation to her visa refusal. The applicant has remained in Australia to seek administrative review in relation to the refusal of her Medical Treatment visa application.

    In relation to the applicant’s health, she took ‘medicated treatment as directed by a Doctor, but the Depression and Dementia problem didn’t seem to get better. The Doctor advised me that I need take medicine ongoing for at least a year to start seeing an improvement. Because of my age the Doctor could not give me an accurate timeline or answer on the prognosis and difficult to assess at my age’.

    The applicant's daughter has helped and supported the applicant to improve her depression by buying her a canary. The applicant's daughter also assists with her day-to-day living such as providing company and recreation activities. Regrettably, the canary escaped which made the applicant more depressed. The applicant’s son-in-law has purchased the applicant a keyboard to help with the applicant’s dementia and depression. The applicant states that her memory is getting progressively worse, and she does not want to go out and feels that she's becoming ‘useless’ and the ‘burden’.

    c.Question 3a: Depression 17/6/22 Dementia 22/6/22 Hypertension 8/2/23.

    d.Question 3b: Antidepressant from 22/6/22 and to continue.

    e.Question 3c: Not seeing specialist for Dementia. I choosed [sic] Dr Muhammad Islam as he is specialising in Geriatric Medicine and his areas of special interest are Aged Care, Family Health, Psychological Strategies for Mental Health Issues as well.

    f.Question 3d: Unknown prognosis.

    g.Question 3e: Standard Consultation $85, 4 times is $340, Long Consultation $180, 1 time, Long Consultation $220,1 time medical tests and medicines $400.

    h.Question 4: The applicant communicates with her daughter and sister in China by online video. The applicant’s sister and relatives want to see the applicant. The applicant is unable to get employment. The applicant is ‘stuck at home all the time (walking with stick and memory impairment)’. The applicant dislikes the climate in Melbourne and Canberra. The applicant's daughter is awaiting her 820/801 visa to be granted. The applicant's daughter and son-in-law cannot leave Australia. The applicant claims she was unaware that she was an unlawful non-citizen and that her lawyer failed to inform her and did not do a professional job.

    FINDINGS and REASONS

1. In the present case, the applicant seeks the visa for the purposes of medical treatment, namely dementia and depression. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

2. There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicant’s last substantive visa, or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa. The Tribunal accepts that the applicant will be financially supported by her daughter and son-in-law and that the applicant will comply with the no work condition due to her age, the language barrier and difficulties with comprehension and hearing.

3. The Tribunal has considered all relevant matters, including the applicant’s time onshore and migration history. The applicant first arrived in Australia on 20 February 2019 on a Visitor visa (Subclass 600). Apart from one brief departure of 11 days,[4] the applicant has maintained a continuous residence in Australia for over four years, using a succession of Visitor (Subclass 600) visas and bridging visas. She has also unsuccessfully sought administrative review. The Tribunal further notes that the applicant’s last substantive visa ceased almost two years ago on 13 July 2021, but the applicant has still not departed. The Tribunal regards the applicant’s time onshore as significant which the Tribunal places adverse weight on. The applicant’s migration history also strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis and does not have a genuine intention of staying temporarily for the purposes of medical treatment.

   [4] Delegate’s decision record

4. Whilst the Tribunal acknowledges that COVID-19 affected international travel from 2020 until 2022, and that this was the original reason the applicant prolonged her stay in Australia, travel restrictions have now lifted, and international travel has resumed. Whilst the Tribunal accepts that the applicant is not capable of undertaking independent international travel due to being cognitively impaired, the Tribunal does not accept that the applicant’s daughter or son-in-law are incapable of accompanying her. Whilst it may cause some short-term inconvenience, the applicant’s son-in-law as either an Australian citizen or permanent resident (by virtue of being able to sponsor the applicant’s daughter on a Partner visa) does not face travel impediments, and no other evidence was submitted in support that he cannot depart Australia temporarily to facilitate the applicant’s return to her home country. There is also no evidence before the Tribunal that the applicant’s daughter is unable to depart Australia due to either a visa condition or due to having a visa application on foot. The Tribunal notes, applicants can apply to the Department to depart and return to Australia, such as a Bridging visa B (noting the applicant’s daughter claims she has a substantive visa on foot awaiting determination).[5]

   [5]   

5. During the applicant’s time in Australia, the applicant has been an unlawful-non-citizen. Although these have been for relatively short periods of time, the applicant has had multiple periods of being an unlawful non-citizen. The Tribunal has had regard to the applicant’s claims that these periods were unintentional and that her representative failed to advise her. Nonetheless, it is the applicant’s responsibility to ensure that she maintains a lawful status. Accordingly, some adverse weight is placed on the applicant with respect to this.

6. The Tribunal has taken into account that the applicant has been given the benefit of remaining in Australia well beyond the time she had requested, namely 25 September 2022, over seven months, by virtue of the time it has taken to bring this matter to review, and despite this additional time, the applicant has remained onshore. 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.

7. The Tribunal has also considered the applicant’s claims regarding medical treatment in Australia. The Tribunal accepts that the applicant is suffering from dementia and is depressed, taking anti-depressants and receiving care from her daughter. The Tribunal has great sympathy for the applicant and her daughter with the situation they face. Dementia is a cruel disease. However, from the medical evidence provided the applicant’s condition is unlikely to improve and rather it is a condition the applicant will sadly have to live with and manage as best she can. Any care or medical treatment that is needed can be provided in the applicant’s home country of China. In fact, the applicant concedes that such medical services are available and that she has insurance to receive such support. 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.

8. The Tribunal has also considered the applicant’s personal and economic circumstances that would encourage her to return to her home country at the end of the proposed stay. While the Tribunal accepts that the applicant has some remaining family in China, the Tribunal is not convinced that they provide a strong incentive for her to return. From Dr Islam’s consultation notes referred to in [22] above, the Tribunal notes that the applicant’s youngest sister is now deceased, and that applicant has lost interest in video calls to China. Given the applicant’s current medical condition, in particular her problems with comprehension, hearing and memory, the Tribunal has serious doubts the applicant will be able to keep in contact with them or meaningfully engage with them upon her return to China and overall does not accept that they constitute a strong incentive to return. Similar concerns apply to the applicant’s ability to become re-engaged in her Chinese community in China. Consequently limited weight is placed on this factor as an incentive to return.

9. The Tribunal notes that the applicant equally has a daughter and son-in-law who reside in Australia and provide her with personal and financial support, including accommodation, showering, and companionship. The Tribunal has serious concerns that they will act as an incentive for the applicant to remain in Australia. These concerns are further strengthened by the fact that the applicant plans to apply for a Parent visa to remain in Australia. The Tribunal has considered the applicant’s claims that she wishes to return to China due to preferring the weather to Melbourne or Canberra. However, as noted in Dr Islam’s clinical notes in [22] above she the does not go outside much and therefore limited weight is placed on these claims as an incentive to return. On the basis of the applicant’s migration history, the medical evidence and the information submitted in her visa application, the Tribunal does not have confidence, and is not satisfied, that the applicant’s circumstances are conducive to her returning to China.

10. 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.

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

    DECISION

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

    Naomi Schmitz
    Member