Li (Migration)

[2021] AATA 4655

Li (Migration) [2021] AATA 4655 (24 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yang Li

CASE NUMBER:  2009483

HOME AFFAIRS REFERENCE(S):          BCC2020/1386697

MEMBER:Mark Bishop

DATE:24 November 2021

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 November 2021 at 10:01am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – immigration history – no substantive visa at the application date – requirement to be gravely ill or receiving intensive or critical care – maintaining ongoing residence in Australia – period of treatment expired – no current medical treatment – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 362, 379
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 19 May 2020 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 17 April 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 applicant did not appear before the Tribunal on 24 November 2021 to give evidence and present arguments.

4. The applicant provided a copy of the decision record to the Tribunal.

5. On 9 November 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 24 November 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

6. It is the practice of the Tribunal to conduct “preliminaries” prior to the commencement of the hearing. These preliminaries are a courtesy to review applicants and basically explain the process of the hearing which will commence at a later time. The Tribunal contacted the applicant on numerous occasions immediately prior to 9.30am on the day of the scheduled review hearing. There was no response to any of these phone calls. The Tribunal also attempted to contact the applicant by phone to commence the hearing and the applicant did not respond to the phone call (for full detail see Case Note number 4).

7. The applicant did not appear before the Tribunal.

8. The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. The applicant provided a copy of the decision record to the Tribunal.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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

12. 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.

13. Cluse 600.215 is set out immediately below:

    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 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.

14. Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:

    Unfit to depart

    (6) All of the following requirements are met:

    (a) the applicant is in Australia;

    (b) the applicant has turned 50;

    (c) the applicant has applied for a permanent visa while in Australia;

    d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

    (e) the applicant has been refused the visa;

    (f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

15. Clause 602.212 (6) (f) provides as follows:

    ·“the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth

16. The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

17. Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth”

18. The applicant was born on 30 July 1985. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

19. Hence the applicant does not meet the criteria set out in cl.602.215 (6).

20. Accordingly the Tribunal turns to cl.602.215.

21. The delegate summarised the applicant’s visa/immigration history as follows:

    ·“On 07 April 2020, the applicant lodged an application for a Medical Treatment visa. It is stated that they would like to remain in Australia to seek medical treatment for depression. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia

    ·On 11 May 2020, the applicant was sent a Natural Justice letter inviting them to comment on their Migration History as below:

    ·On 26 December 2011, the applicant arrived in Australia as the holder of a Student (subclass 573) visa.

    ·Between 22 July 2013 and 01 December 2016, the applicant has made a further two temporary visa applications. The most recent was refused on 16 February 2017.

    ·The applicant has unsuccessfully sought various avenues of review for the refused application including Judicial Review,

    ·The Judicial Review was unsuccessful on 20 March 2020 and you then the applicant lodged this application for a Medical Treatment (subclass 602) visa on 17 April 2020.

    ·The applicant currently holds a Bridging (subclass 030) visa as you were not the holder of a substantive visa when the application was made.

    ·A response period of seven days was afforded to the applicant to provide a response to the Natural Justice letter regarding their Migration History. To date, no response has been received by the Department.

    ·The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state they must remain in Australia for ongoing consultation. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.

22. The delegate made the following findings:

    ·“In their Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future. Departmental records confirm that the applicant has unsuccessfully applied for further visas onshore and have taken every opportunity to present their case or circumstances for review. I find that their adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia..

    ·I have considered the claims and supporting evidence that the applicant has provided with their application. I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

    ·I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.

    Decision

    ·As clause 602.215 is not met by the applicant, I find the criteria for the grant of a Medical Treatment visa are not met by the applicant. Therefore, I refuse the application by the applicant for a Medical Treatment visa.”

23. In assessing whether the applicant satisfies cl.600.215 the Tribunal considers the following:

    ·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject

    ·whether the applicant intends to comply with the conditions to which the visa would be subject

    ·whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia

    ·the personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay

    ·the personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption)

    ·conditions that might encourage the applicant to remain in Australia

    ·the presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia

24. The applicant did not give evidence to the Tribunal.

25. The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state she must remain in Australia for ongoing consultation. Information provided does not state that the treatment sought by the applicant is unavailable outside of Australia.

26. In her Medical Treatment visa application dated 17 April 2020 the applicant did not provide sufficient documentation to demonstrate her intention or incentive to depart Australia now or in the near future. The applicant declared “my psychological advised me to get further treatment in Australia to relief my mental depression.” The applicant provided a copy of a form 1507 signed by a Dr Wei Lu (psychologist) stating “she suffers natal depression due to a number of miscarriages and episodes of severe depression. Also her OCD needs treatment consultation re drug therapy. 12 Months treatment 3 weekly sessions.”

27. The Tribunal has considered the above information. The Tribunal notes the detail and data provided was dated April 2020. The applicant has not provided any updated or current medical reports or advice to the Tribunal. The Tribunal notes the 12 month period of treatment expired in April 2021. The Tribunal is not aware if the applicant is receiving any treatment or whether the treatment has concluded.

28. The Tribunal reviewed all material on the Departmental and Tribunal files. The applicant did not challenge the findings of the delegate in any way. The applicant did not point out any errors in the reasoning or findings of the delegate.

29. In assessing the relevant criteria the Tribunal has taken into account the information provided in the visa application form and the supporting documents provided. The Tribunal finds that the information provided is not sufficient to satisfy the Tribunal of the applicant’s genuine temporary stay intention, and the applicant has not demonstrated sufficiently strong commitments in her home country that would be an incentive to return to her home country.

30. The applicant has not provided to the Tribunal any current medical evidence that supports current or ongoing need for any form of medical treatment to support a past  finding of depression.

31. The Tribunal has reviewed the information summarised in paragraph 26 above. The Tribunal is unable to find the applicant ever continued any medical treatment consistent with the advice provided to the Department post initial diagnosis.

32. The Tribunal is unable to find the applicant is currently engaged in any form of medical treatment under the guidance or supervision of a recognised medical professional for her condition of depression. The Tribunal finds is unable to find the applicant is currently undergoing any medical treatment at all.

33. The Tribunal finds the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

34. The Tribunal is of the view the applicant does not genuinely intend to stay temporarily in Australia. 

35. Given the above findings, cl 602.215 is not met.

36. The Tribunal has also considered all other relevant matters (cl 602.215(1)(c)).

    Concluding paragraphs

37. For the above reasons the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl 602.215 are not met.

    DECISION

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

    Mark Bishop

    Member