Liao (Migration)

[2022] AATA 470

Liao (Migration) [2022] AATA 470 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jo-Lan Liao

REPRESENTATIVE:  Mr Ernie Hu (MARN: 1383659)

CASE NUMBER:  2012039

HOME AFFAIRS REFERENCE(S):          BCC2020/1807063

MEMBER:Andrew McLean Williams

DATE:17 February 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 17 February 2022 at 11:59am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – care for Australian citizen daughter – no medical evidence – financial hardship – exclusive parental – referral for Ministerial Intervention – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 351
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 8 July 2020 refusing 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 27 June 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 Delegate refused to grant the Applicant the visa because the Delegate could not be satisfied that the Applicant only intended to remain in Australia temporarily for the express purposes of medical treatment.

4. The Applicant appeared before the Tribunal on 17 February 2022.  

5. The Applicant was represented in relation to the review by Mr Ernie Hue of TIA Lawyers. Mr Hue also attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia only temporarily, for medical treatment, or related purposes. The issue in this case is whether the Applicant now meets the requirements of cl.602.215.

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

8. Clause 602.215 requires that the applicant genuinely intends to stay only 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.

9. In this case the Applicant is substantially less than 50 years of age and doesn’t meet some of the other requirements in cl. 602.212(6), either.  Accordingly, the requirements in cl 602.215 do still apply in the case of this Applicant.

10. The Applicant has applied for the visa indicating that she wishes to remain in Australia ‘permanently’ in order to care for her infant daughter, who is an Australian citizen.  In addition, no medical evidence has been submitted by the Applicant in support of her request for a subclass 602 medical visa.  These specific matters were put to the Applicant by the Department prior to the Delegate making his decision.  The Applicant’s representative Mr Hue confirmed that the Applicant was only seeking the visa in order for it to be refused, as a prelude to seeking Ministerial intervention.

11. On the hearing of this Application for review both the Applicant and Mr Hue confirmed that the basis for their seeking a review was only as part of the pathway to Ministerial intervention.  Indeed, it remains the case that no medical evidence has been submitted to the Tribunal in support of the need for the Applicant being issued with a Subclass 602 visa.

12. Given the above, cl 602.215 is not met. As the Applicant does not meet the requirements for the grant of the visa, the decision under review can only be affirmed.

    Request for Ministerial Intervention:

13. The circumstances giving rise to the Applicant seeking Ministerial intervention are as now set out, in written submission to the Tribunal dated 10 February 2022. 

14. In overview, these submissions indicate that the Applicant is the sole supporting parent for an Australian infant, Chantel Liao, born on 4 May 2018.  Chantel’s father has refused to acknowledge or support his infant daughter, and the Applicant has been placed in circumstances of great financial hardship trying to support and care for her daughter Chantel as a single parent.  The Applicant now has sole custody and exclusive parental responsibility for Chantel.  

15. The Applicant first came to Australia as a high school student, and has spent the majority of her young adulthood in Australia and has undertaken most of her education in Australia and has several vocational qualifications, including as a childcare worker  The Applicant has no available visa options.  In the event that the Applicant is now required to return to her native Taiwan there will be no adult person remaining in Australia who is able to care for her infant daughter Chantel, who is an Australian citizen.

16. In all the circumstances the Tribunal recommends that the Applicant’s particular circumstances and detailed written submission dated 10 February 2022 now be considered by the Minister.

    DECISION

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

    Andrew McLean Williams
    Member