Marke (Migration)

[2023] AATA 688

Marke (Migration) [2023] AATA 688 (20 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Meristo Marke

REPRESENTATIVE:  Mr Filippo Pellegrino (MARN: 1275758)

CASE NUMBER:  2100614

HOME AFFAIRS REFERENCE(S):          BCC2020/2917641

MEMBER:Louise Nicholls

DATE:20 March 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 20 March 2023 at 5:09pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – adequate means of support during the intended stay – genuine temporary stay for medical treatment – lengthy stay in Australia – period of unlawful residence – limited medical evidence – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.216

CASES

Hasran v MIAC [2010] FCAFC 40     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Estonia and is 34 years of age. He first arrived in Australia as the holder of a TZ-417 Working Holiday visa on 21 February 2012. His second working holiday visa ceased on 21 February 2014.

2. Since that date he held a bridging visa (BVA) which ceased on 21 March 2014. He now holds a bridging visa (BVC) which was granted on 4 January 2021. 

3. The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 4 January 2021. He provided the following documents with the application:

   ·A copy of the biodata page of his Estonian passport issued on 2 October 2020.

   ·Form 1507 (Evidence of intended medical treatment) completed by Dr Phillip A Cooke, Cardiologist on 18 November 2020. The medical condition requiring treatment is described as “Hypertension – Bifascicular block”.

   ·A Commonwealth Bank account confirmation letter dated 26 December 2020.

   ·A copy of his Estonian Driver’s License and National ID Card.

   ·Letters from Dr Phillip Cooke (Cardiologist) dated 20 November 2020 agreeing to accept him as a patient and outlining the estimated total costs of all appointments and consultations.

   ·Form 956 appointing Mr Filipo Pellegrino from Modern Migration Australia P/L as the migration agent – dated 16 November 2020.

4. On 4 January 2021 a delegate of the Minister for Home Affairs refused to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act) because the delegate was not satisfied that the applicant met the requirements of cl.602.216 of the Migration Regulations 1994 (the Regulations).

5. This is an application for review of that decision, and it was lodged on 19 January 2021. The applicant provided a copy of the delegate’s decision record with his application.

6. The applicant was represented in relation to the review by his registered migration agent.

7.    On 2 February 2023 the Tribunal wrote to the applicant pursuant to s 359 of the Act inviting the review applicant to provide relevant information in writing.

1. In the preface to the invitation the applicant was advised that his application had been refused because a delegate of the Minister was not satisfied that he met cl.602.216 of Schedule 2 to the Migration Regulations 1994. He was advised that cl. 602.216 required that he has, or has access to, adequate means to support himself during the period of his intended stay in Australia. It advised that he must also satisfy c.602.215 which requires that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In considering this, he was advised the Tribunal must have regard to whether he had complied substantially with the conditions of his last held substantive visa or any subsequent bridging visa; whether he intended to comply with the conditions to which the Subclass 602 visa would be subject; and any other relevant matter.

9.    He was then, invited to provide the following information in writing:

“1. 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

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

1. The invitation was sent to the last address provided in connection with the review and the applicant was advised that, if the information was not provided in writing by 16 February 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11.   The applicant was also advised that if he could not provide the information by 16 February 2023, he could ask the Tribunal for an extension of time in which to provide the information. If he were to make such a request, it must be received by the Tribunal by 16 February 2023, and it must state the reason why the extension of time is required.

1. On 17 February 2023 the applicant’s representative wrote to the Tribunal and advised that he had met with the applicant, and the representative had been provided with the Tribunal’s request for evidence and a response. He stated that the applicant had subsequently responded to the representative the night before, indicating he was still trying to source his medical records. The representative stated that he was continuing to work with the applicant to provide a response to the Tribunal.

13.   On 20 February 2023 the Tribunal wrote to the applicant advising that he had lost his entitlement to a hearing, but the Tribunal would consider any further information or evidence addressing the issues under consideration, as indicated in the earlier invitation to provide information. He was advised that he should provide that information or evidence by 13 March 2023, as after that date the Tribunal would proceed to make a decision.

1. The applicant has not provided the informationwithin the prescribed period and no extension has been granted. 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

2. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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 the criteria for the visa, in particular, whether he meets cl. 602. 216.

   Background

5. The applicant was born in, and is a citizen of, Estonia and is 34 years of age. The applicant arrived in Australia as a Subclass 417 Working Holiday visa holder and has held two Subclass 417 visas before he was refused a Subclass 600 Visitor visa.

6. He also stated in his application for the Subclass 602 Medical Treatment visa that he had overstayed in Australia.

7. Departmental movements records confirmed that the applicant was granted his first working holiday visa on 4 January 2012 and that he entered Australia on this visa on 21 February 2012. He was granted his second working holiday visa on 23 March 2013. That visa ceased on 21 February 2014. He was then granted a bridging visa on 21 February 2014 and that visa ceased on 21 March 2014. He did not appear to hold a visa again until he was granted a bridging visa on 4 January 2021. These records are consistent with the details he gave in his application for the visa.

8. The applicant stated in his application he had a heart condition which required treatment in Australia.

   Does the applicant have access to, or adequate means of support?

9. Clause 602.216 requires the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia. 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.

   Is the applicant medically unfit to depart as described in cl.602.212(6))?

10. The applicant provided the Department with a copy of his passport which shows he was born on a date in 1988. He also provided this birth date in his application for the visa and his application for the review. On the evidence before it, the Tribunal is satisfied that the applicant has not turned 50 years and therefore he does not meet cl.602.212 (6). As a consequence, this means that he must meet the requirements of cl.602 216.

    Does the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia?

11. On 20 November 2020 the applicant provided a letter from Dr Cooke, specialist cardiologist, who stated he had agreed to provide treatment for the applicant by way of a left ventricular dilation and bifascicular block and medical assessment of his hypertension and provision of medication. Dr Cooke estimated the total cost would be $1,500 and would be paid on the date of treatment in a private clinic. Dr Cooke did not state when the applicant would be treated or how long the treatment would take.

12. In the application for the visa, the applicant estimated his treatment would take place between 24 December 2020 to 24 June 2021.

13. The applicant provided the Department with a bank statement which showed his balance as $2566.09AUD in December 2020. However, there was no other evidence or material which showed the source of funds to support himself for the treatment as well as for living expenses for the estimated period of treatment.

14. Despite requesting further information from the applicant regarding his treatment and other matters relevant to his application, the Tribunal has not received any updated information on the arrangements for treatment and whether the treatment has taken place. It has not received any information about whether the applicant has adequate means or access to adequate means to support himself during the period of intended stay.

15. In his application, the applicant indicated that he expected his treatment to take place before 24 June 2021, however, there is no updated medical evidence as to when the treatment began, or was due to begin, and when it ceased, or is due to cease. Despite providing the applicant with considerable time in which to provide updated information, the applicant has not satisfactorily responded to the request for information. The Tribunal is left with, as evidence of his financial circumstances, a bank statement from December 2020 that the applicant has the sum of $2,566.09 in his Commonwealth bank account. There is no current evidence as to arrangements for treatment and no other evidence which might support a finding that he has, or has access to, adequate funds for the period of such treatment.

16. Accordingly, the Tribunal is not satisfied that the applicant has adequate means, or access to adequate means, to support himself during the period of the intended stay in Australia.

    Conclusion

17. Given the above findings, cl 602.216 is not met.

18. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    DECISION

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

    Louise Nicholls
    Senior Member