Liu (Migration)

[2022] AATA 1226

Liu (Migration) [2022] AATA 1226 (18 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cheng Liu

CASE NUMBER:  2003525

HOME AFFAIRS REFERENCE(S):          BCC2019/6487948

MEMBER:Mark Bishop

DATE:18 January 2022

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 18 January 2022 at 10:04am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602– an unlawful non-citizen –adverse migration history –strong motivation to remain in Australia indefinitely –– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 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 6 February 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 5 December 2019. 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 applicant failed to satisfy the criteria set out in the relevant Migration Regulations.

4. The applicant appeared before the Tribunal on 18 January 2022 and to give evidence and present arguments.

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

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 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?

8. 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.

9. Clause 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

   (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.

   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.

10. 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

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

12. 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”

13. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

14. The applicant was born on 4 May 1994. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

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

16. Accordingly the Tribunal turns to cl.602.215.

17. In his Application for a Medical Treatment Visa dated 5 December 2019 the applicant declared he sought medical treatment or consultation in the period December 2019 until December 2020 The Form 1507 provided to the Department outlined a medical condition of “Hard neck with severe pain. Range of motion limited”. Treatment information was “cervical joints pain management plan, accupunction, trigger points therapy and stretching exercise”.

18. The applicant advised the Tribunal he did not challenge the findings of the delegate. In evidence the applicant advised the findings of the delegate concerning his immigration history were correct.

19. The delegate summarised the applicant’s immigration and visa history as follows:

    Departmental records demonstrates that:

    On 22 February 2015, the applicant arrived in Australia as the holder of a Visitor (subclass 600) visa. On 22 May 2015, the applicant lodged an application for Permanent Protection (subclass 866) which was refused on 11 April 2016. On 16 May 2016, the applicant sought a review of the decision at Administrative Appeals Tribunal (AAT). This was affirmed by the AAT on 10 July 2017. On 07 August 2017, the applicant lodged an appeal to the Federal Court which resulted in Minister Win being recorded on 21 September 2018. On 18 October 2018, the applicant lodged an appeal to the Full Federal Court which resulted in Minister Win being recorded on 15 May 2019.

    The applicant currently holds a Bridging E (subclass 050) visa;

    During their time in Australia, the applicant has been an unlawful non-citizen for 170 days.

    On 05 December 2015, the applicant lodged an application for a Medical Treatment visa. It is stated that they would like to remain in Australia until 06 December 2020 to seek medical treatment for Hard neck with severe pain and range of potion limited. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.

20. On 14 January 2020, the applicant was requested to provide information regarding their visa history. The applicant was afforded 7 days to provide information. On 20 January 2020, the applicant provided the following statement;

    “Dear Marina,

    I refer to your email to me below and asking me to common about my immigration history. The following information is for your kind consideration:

    1. I came to Australia with visit visa and been obeying to my visa condition.

    2. Due to my strong fears to return to my home country for persecution, I applied for protection visa, however it was not successful. And I dare not return to China as the fears had been very strong.

    Later I suffered from my current medical condition. I have provided with supporting documents to immigration office and I do need treatments in Australia. I wish the immigration will consider that I have been away from China for many years and I am unable to return to China to undertake my medical treatment there. I am so sorry for my overstayed immigration history and I do apologize for it.

    I hope you can grant me this visa and allow me to take further treatment here. I declare that I will obey my visa condition and not breach it.

21. Based on the response which demonstrates their history of remaining in Australia on continual pathway to remain in Australia. I also considered Departmental records which confirm that the applicant has unsuccessfully applied for a permanent visa 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 on a permanent basis.”

22. The delegate made the following findings:

    ·“Furthermore 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.

    ·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.”

23. In evidence to the Tribunal the applicant advised as follows:

    ·His visa history as outlined in the decision record was correct.

    ·He continues to receive physiotherapy treatment for his neck subject to current lockdown regulations. He receives that physiotherapy treatment when he feels uncomfortable.

    ·He is aware that physiotherapy treatment is available in his home country.

    ·He does not wish to return to his home country because he “does not feel well”.

24. The applicant did not provide any written evidence that supports his assertion of continuing to receive physiotherapy for the past lengthy period of time since December 2019 and into the future. He did not provide any medical statement or statement from a like professional that outlines his current medical condition or any requirement to remain in Australia into the future to receive any such treatment. He did not provide any medical statement or statement from a like professional that advises of inability to fly for any period of time for any reason. He did not assert to the Tribunal that he was able to provide such a statement.

25. The Tribunal is satisfied that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that he does not genuinely intend to remain in Australia on a temporary basis.

26. There is insufficient evidence for the Tribunal to find the “applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”.

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

    DECISION

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

    Mark Bishop
    Member