Miao (Migration)

[2022] AATA 1038

Miao (Migration) [2022] AATA 1038 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xinhe Miao

CASE NUMBER:  2004324

HOME AFFAIRS REFERENCE(S):          BCC2019/6844471

MEMBER:Andrew McLean Williams

DATE:17 January 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 January 2022 at 11:23am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 – applicant had not received any treatment in the form of psychological therapy – depression – maintain ongoing residence in Australia – 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 25 February 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 24 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 Delegate was not satisfied that the Applicant intended to stay in Australia only temporarily, for purposes relating to the Applicant’s reason for requesting the visa.

4. The Applicant appeared before the Tribunal on 17 January 2022 to give evidence and make submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 remain in Australia only temporarily whilst undergoing medical treatment.

   Is the visit for medical or related purposes?

7. Clause 602.211 requires that the visa Applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

8. The Applicant arrived in Australia on 15 November 2014 on a Student (Subclass 573) visa.  This visa was cancelled on 13 September 2016.  On 26 February 2016 the Applicant sought a review of the Subclass 573 visa before the Tribunal.  On 16 February 2018 the Tribunal affirmed the Subclass 573 visa cancellation.  On 2 March 2018 the Applicant appealed the Tribunal decision to the Federal Court.  On 9 December 2019 the Federal Court dismissed the Applicant’s appeal.  Shortly afterwards, on 24 December 2019, the Applicant lodged an application for a Medical Treatment (Visitor) visa, now seeking permission to stay in Australia until 24 December 2020, in order to receive medical treatment for depression.

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

9. 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.

10. The Applicant applied for the visa on 24 December 2019.  The visa application lodged on that date indicated that the Applicant wished to remain in Australia for only for a further 12 months, until 24 December 2020, in order to allow the Applicant time to seek treatment from a psychologist for major depressive disorder.  This visa application was supported by one medical certificate indicating that the Applicant has that condition.

11. Other than the original medical certificate, no other medical evidence has been provided by the Applicant relating to the course of her treatment; or the Applicant’s prognosis; or her requirement for further treatment beyond 24 December 2020.  There is also no evidence before the Tribunal suggesting that treatment in the form of cognitive behavioural therapy (CBT) and mindfulness therapy is unavailable in the Applicant’s home country of China. 

12. When asked by the Tribunal whether she was still undergoing treatment, the Applicant replied that she had seen a psychologist five or six times in total, yet that she had not received any treatment in the form of psychological therapy for more than twelve months, and had not been prescribed any form of medication for depression by a doctor, either.  Despite this, the Applicant indicated that she wished to remain in Australia and does not wish to return to China, lest she disappoint her parents.

13. The Tribunal cannot be satisfied on the available evidence that the Applicant requires further medical treatment for major depression, or that the Applicant only intends to remain in Australia temporarily in order to obtain such medical treatment.  Accordingly, the Tribunal is not satisfied that the requirements of Clause 602.215 have been satisfied.

14. 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

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

    Andrew McLean Williams
    Member