Liang (Migration)

Liang (Migration) [2021] AATA 2644 (9 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jinyu LIANG
CASE NUMBER:  1928045
HOME AFFAIRS REFERENCE(S):          BCC2019/4256819
MEMBER:Nathan Goetz
DATE:9 June 2021
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 09 June 2021 at 1:01pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – applicant is not in Australia – absence of medical documentation – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 362
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant identifies as a 33-year-old male citizen of China.
He arrived in Australia on 15 January 2014 holding a student visa.
On 10 September 2014 the applicant applied for a protection visa. He was granted a bridging visa to regularise his migration status while his protection visa application was considered. The protection visa application was refused on 29 September 2015. On 20 October 2015 the applicant applied to the Tribunal for a review of the refusal decision.
On 18 January 2016 the student visa ceased.
On 8 June 2018 the Tribunal affirmed the decision to refuse to grant the applicant a protection visa. On 5 July 2018 the applicant lodge judicial review proceedings in the Federal Circuit Court. On 15 April 2019 the Federal Circuit Court dismissed the proceedings. On 2 May 2019 the applicant appealed against that order to the Federal Court. On 5 August 2019 the applicant withdrew those proceedings.
On 27 August 2019 the applicant applied for the medical treatment visa. 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).
On 17 September 2019 the delegate refused to grant the medical treatment. The delegate was not satisfied that the applicant met cl.602.215(1). That is to say, the delegate was not satisfied that the applicant genuinely intends to stay in Australia for the purpose for which the medical treatment visa is granted.
On 4 October 2019 the applicant applied to the Tribunal for a review of the decision to refuse the medical treatment visa.
On 7 February 2021 the applicant departed Australia.
On 24 May 2021 the applicant was invited to appear at a 15-minute Tribunal hearing scheduled on 9 June 2021 commencing at 12:45pm. The Tribunal was satisfied that the Tribunal hearing should occur by telephone. The hearing invitation advised the applicant of the potential consequences should he not appear at the Tribunal hearing.
At 12:45pm on 9 June 2021 the Tribunal telephoned the applicant on the phone number he provided with his review application form so he could appear at the Tribunal hearing. The call was not successful.
Consequently, the applicant failed to appear at the Tribunal hearing.
Given all of the circumstances, noting that the applicant was offshore, had not responded to the Tribunal hearing invitation, and had provided no further evidence to the Tribunal, the Tribunal decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal: s.362B(1A)(a). The Tribunal waited until the end of the allocated hearing time before making a decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to the applicant’s visa application form, the purpose of his stay in Australia is medical treatment (including organ receipt) or consultation in Australia. The Tribunal understands this information is obtained from a drop-down field of answers in the online form. The applicant is seeking medical care from 27 August 2019 to 27 August 2020 for depression. His stay in Australia will be self-funded through savings. He will be receiving care from Wilson Wong of the Rowe Street Medical Centre in Eastwood, New South Wales 2122. The applicant declared that he had overstayed in Australia and had a visa cancelled and refused in Australia. He declared that he had outstanding debts to the Commonwealth.
The applicant attached Form 1507 which was completed by Wilson Wong who identified as a clinical psychologist. The medical condition requiring treatment was identified as ‘anxiety depression’ and the treatment information was ‘cognitive behavioural therapy, positive thinking, problem solving, relax and regular exercise.’
FINDING AND REASONS
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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 of medical treatment.
Is the applicant unfit to depart Australia?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The evidence is that the applicant is not in Australia and has not turned 50 years of age. There is no evidence that he applied for a permanent visa in Australia and appeared to have met all the criteria for that visa (other than the health criteria) but had been refused the visa. There is no evidence that the applicant 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.
Therefore, the applicant does not meet the requirements of cl.602.212(6).
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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). As found above, the applicant does not meet cl.602.212(6).
Apart from the Form 1507 which evidenced that the applicant had consulted Wilson Wong on 18 August 2019, nothing further was provided to support the applicant’s claimed diagnosis of anxiety and depression, or the proposed treatment related to this claimed condition. The Form indicates the medical condition requiring treatment, but this may have been only based on self-reporting by the applicant. For a diagnosis of anxiety and depression to be made, it is reasonable to expect that a report would be provided to confirm that diagnosis, and how that diagnosis was arrived. There is no evidence that the applicant was treated as proposed in the Form. For all the Tribunal knows, the applicant may have consulted with Wilson Wong on 18 August 2019 and never been heard from again.
The fact that the applicant has since departed Australia does not evidence that he had a genuine intention to stay in Australia temporarily for medical treatment. The absence of medical documentation, when combined with the applicant’s migration history of lodging a protection visa application, demonstrates to the Tribunal’s satisfaction that that the medical treatment visa was lodged in order establish the residency in Australia that was denied to him when his protection visa was refused.
Therefore, the Tribunal is not satisfied that the applicant genuinely intended to stay in Australia temporarily for the purpose of medical treatment.
CONCLUSION
Given the above findings, cl 602.215 is not met.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Nathan Goetz
Member

ATTACHMENT
Migration Regulations 1994
Schedule 2
602.212 (1)    The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2)All of the following requirements are met:
(a)    the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b)    arrangements have been concluded to carry out the treatment;
(c)     if the treatment is an organ transplant:
(i)the donor of the relevant organ is accompanying the applicant to Australia; or
(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f)     either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3)All of the following requirements are met:
(a)    the applicant seeks to donate an organ for transplant in Australia;
(b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c)     the applicant satisfies public interest criterion 4005;
(d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(e)     either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Support person
(4)All of the following requirements are met:
(a)    the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i)the requirements described in subclause (2) or (3) are met; or
(ii)the requirements described in subclause 675.212(2) or (3) are met; or
(iii)the requirements described in subclause 685.212(2) or (3) are met;
(b)    the person to whom the applicant is to provide support holds:
(i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c)     the applicant satisfies public interest criterion 4005.
Western Province of Papua New Guinea
(5)All of the following requirements are met:
(a)    the applicant is a citizen of Papua New Guinea;
(b)    the applicant resides in the Western Province of Papua New Guinea;
(c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
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.
Financial hardship
(7)All of the following requirements are met:
(a)    one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant holds:
(i)a Subclass 602 visa; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;
(e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;
(g)     the applicant has compelling personal reasons to work in Australia;
(h)    the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8)All of the following requirements are met:
(a)    one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant has compelling personal reasons for the grant of the visa;
(d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).

[2021] AATA 2644

9 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction