liu (Migration)

[2021] AATA 402

liu (Migration) [2021] AATA 402 (18 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Qian liu

CASE NUMBER:  1900363

DIBP REFERENCE(S):  BCC2018/5616595

MEMBER:Angela Cranston

DATE:18 January 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 18 January 2021 at 12.19pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary entrant – general anxiety disorder – counselling required – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B

Migration Regulations 1994 (Cth), 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 Immigration on 20 December 2018 to refuse to grant the visa applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 December 2018. In her application, the applicant stated that she wished to remain in Australia from 5 December 2018 to 5 December 2019. She also stated she had suffered general anxiety disorder for a long time, that she was under medical assessment and that a further medical treatment plan would be arranged by her psychologists. Also provided was a letter from Edwin Kleynhans Psychologist in Melbourne stating that the applicant needed counselling for 10 months and that Dr Lenora Lun in Chatswood Sydney would be her treating medical practitioner.  

3. The delegate refused to grant the visa because they were not satisfied that the applicant met cl.602.215.

4. On 8 December 2020 the Tribunal wrote to the applicant at the last notified email address advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant (and exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to give oral evidence and present arguments at a hearing by telephone at 10.00a.m on 18 January 2021. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice.

5. The Tribunal confirmed that the hearing invitation was sent to the applicant at the most recently advised email address.

6. The Tribunal attempted to send SMS reminders on 11/1/2021 and 15/1/2021 to the most recently notified telephone number. The Tribunal also phoned the applicant on the most recently notified number on 18 January 2021 at 9.48am, 9.50 am, 10.00am, 10.15am and 10.30am but the phone was unanswered.  

7. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. There was no reason provided from the applicant as to the applicant's failure to appear and there is nothing before the Tribunal to suggest that he was ill. 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.

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 meets clause 602.215.

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

10. 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).

11. The claims before the Tribunal are lacking in essential detail. While the applicant has stated that she wished to remain in Australia from 5 December 2018 to 5 December 2019 and suffered general anxiety disorder and a letter from a Melbourne doctor stated she needed counselling and that a Sydney doctor would be her treating medical practitioner, there is no information as to what has happened since then.

12. The applicant was invited to appear before the Tribunal but did not do so.

13. As a consequence, the Tribunal has been unable to question her further as to the veracity of any of her claims, leaving her claims unclarified and the Tribunal's questions unanswered. On the evidence before it, the Tribunal is not satisfied that there is medical evidence to indicate that the applicant is medically unfit to depart Australia as described in cl 602.212(6) or that the applicant is currently seeking medical treatment or that she genuinely intends to stay temporarily in Australia for the purposes of medical treatment or for related purposes.

14. For the reasons given above, the Tribunal is not satisfied that the applicant meets clause 602.212(6) or 602.215.

    DECISION

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

    Angela Cranston
    Member