Liew (Migration)

[2023] AATA 1006

Liew (Migration) [2023] AATA 1006 (11 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Cyrene Liew

REPRESENTATIVE:  Mr Wangzhang Chew

CASE NUMBER:  2209591

HOME AFFAIRS REFERENCE(S):          BCC2022/1988346

MEMBER:Mara Moustafine

DATE:11 April 2023

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 11 April 2023 at 4:34pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – period of unlawful residence – medically unfit to depart Australia – no evidence of medical treatment - husband and children in Australia – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

CASES

Hasran v MIAC [2010] FCAFC 40     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    The applicant is a citizen of Malaysia and is 42 years of age. The applicant last arrived in Australia on 16 January 2020 as the holder of a Student (subclass 500) Visa, which was cancelled on 18 September 2020. The applicant remained in Australia as an unlawful non-citizen until they were granted a Bridging E Visa on 4 December 2020.

1. The applicant applied for a Medical Treatment on 2 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).

2. With her application, the applicant provided a copy of her passport and Malaysian ID. She also provided a Form 1507 (Evidence of intended medical treatment) signed by Dr Helen Hsu on 1 June 2022 which stated the applicant required treatment for anxiety and depression and was being treated with antidepressants and counselling. In her application form the applicant stated that she would be under medical care from 2 June 2022 to 1 June 2023 and that her stay in Australia will be supported by her niece/nephew.

3. On 24 June 2022 a delegate of the Minister of Home Affairs refused to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act) because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted, particularly in light of the amount of time the applicant had already spent in Australia, along with her migration history.

4. On 30 June 2022 the applicant lodged an application for review of that decision, a copy of which she provided to the Tribunal for the purpose of the review.

5. On 13 March 2023 the applicant was invited, pursuant to the provisions of s.359(2) of the Act, to provide information to the Tribunal as follows:

   ·     Information about the medical practitioner and/or medical facility providing your treatment, including name, address and telephone number.

   ·     Information about your arrangements to carry out the medical treatment, for example:

   a.confirmation from your medical practitioner and/or medical facility that they agree to treat you;

   b.the nature and estimated duration of your treatment;

   c.the proposed date(s) of your treatment; and

   d.the possible cost of your treatment.

   ·     Any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

6. The applicant was advised that, if the information was not provided in writing by 27 March 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant’s representative requested an extension which was granted to provide the information to the Tribunal. However, the applicant did not provide further information within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 has a genuine intention to stay temporarily for the visa purpose.

10. Relevantly to this matter cl. 602.215 provides:

    (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.

    Is the applicant unfit to depart Australia?

11. 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.

12. According to her application form to the Tribunal, the applicant was born on 25 September 1980. As she has not turned 50, the requirements in cl.602.212(6) are not met. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

13. Given the above findings, the requirements in cl 602.212(6) are not met.

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

14. 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).

15. As set out above the applicant does not meet the requirements in cl 602.212(6).

16. The applicant seeks the visa for treatment of social anxiety and persistent depressive disorder. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

17. With regard to the requirement that the applicant must have a genuine intention to stay temporarily for the purpose of medical treatment or related matters, the only medical evidence provided by the applicant is the Form 1507 signed by Dr Helen Hsu on 1 June 2022 which stated that the applicant required treatment for anxiety and depression and was being treated with anti-depressants and counselling. Her application form stated that she would be under medical care from 2 June 2022 to 1 June 2023.

18. The applicant did not respond to the Tribunal’s invitation to provide information about the medical practitioner and/or medical facility providing her treatment, including name, address and telephone number; what arrangements had been made to carry out the medical treatment, such as confirmation from her medical practitioner and/or medical facility that they agreed to treat him; the nature and estimated duration of her treatment; the proposed date(s) of her treatment; and the possible cost of her treatment.

19. Nor did the applicant provide any evidence supporting her claim that she had a genuine intention to stay temporarily in Australia for the purpose of medical treatment, noting that in her application form, she stated that she would be under medical care from 2 June 2022 to 1 June 2023.

20. The applicant’s failure to provide relevant information about her medical treatment has led the Tribunal to conclude that she does not genuinely intend to stay temporarily for the purpose for which the visa is granted.

21. The Tribunal’s concern in this regard is compounded by the applicant’s migration history and the amount of time the applicant had already spent in Australia. As noted in the delegate’s decision, the applicant was a holder of a Student (subclass 500) Visa which was cancelled on 18 September 2020. Her last substantive visa expired on 18 September 2020 but she remained in Australia as an unlawful non-citizen until she was granted a Bridging E Visa on 4 December 2020. The applicant also indicated that her immediate family are in Australia including her husband and three children. The applicant did not avail herself of the opportunity to respond to the Department’s Natural Justice letter regarding her migration history or to provide additional evidence to demonstrate her intention to be a genuine temporary entrant and her incentive to depart Australia.

22. The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject, in particular condition 8201 (No studies) and 8503 (The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia).  As the applicant previously held a Student visa which was cancelled, the Tribunal cannot rule out that she might again seek to study while in Australia in breach of condition 8201. Furthermore, given the applicant’s migration history, the extended time she has already spent in Australia and the presence here of her family, including her husband and three children, the Tribunal considers that the applicant has a strong motivation to remain in Australia. The Tribunal is not satisfied that if condition 8503 were placed on any visa, the applicant might not seek to obtain a waiver of such a condition.

23. Having considered these matters cumulatively, including the applicant’s migration history which shows a motivation and intention to remain in Australia permanently, the lack of evidence of any concluded arrangements for medical treatment and her failure to depart at the end of the period originally sought for medical treatment, the Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

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

    Conclusion

25. Based on the findings above, the applicant does not meet the requirements for the grant of the visa.

26. The decision under review must be affirmed.

    DECISION

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

    Mara Moustafine
    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).