Nguyen (Migration)

Nguyen (Migration) [2021] AATA 5521 (29 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dang Tung Nguyen
CASE NUMBER:  2011899
HOME AFFAIRS REFERENCE(S):          BCC2020/1728439
MEMBER:Christine Cody
DATE:29 October 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 29 October 2021 at 3:42pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – no response to 359(2) invitation – medical treatment requirements – mental health conditions – genuine temporary entrant – substantial compliance with past conditions – intention to comply with future conditions – migration history – reasons for remaining in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215
CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 July 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).
The applicant applied for the visa on 12 June 2020. 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).
Application to the Department
In support of his application, the applicant provided an application form, a copy of pages from his passport, a Form 1507, a letter from Medicure Centre dated 11 June 2020, a letter and documents from Ms Do Thi Trang.
According to the visa application form, the applicant is a Vietnamese national. He is 29 years of age. His purpose of stay is “medical treatment or consultation in Australia”. He was seeking to remain in Australia from 12 June 2020 until 12 September 2020 for unspecified medical treatment for an unspecified condition. The estimated cost is $10,000. His parents in Vietnam will financially support him, and he provided a statement and documents from his mother, Ms Do Thi Trang, to that effect.
The Form 1507 “Evidence of Intended Medical Treatment Including Consultation” was signed by Dr Albert Nguyen, on 11 June 2020. It states that the applicant requires psychological counselling and review with a psychologist; no diagnosis or condition was provided. In the accompanying letter, however, Dr Nguyen refers the applicant for management of the applicant’s depression/anxiety.
On 16 June 2020 the delegate sent an invitation to comment on information[1] to the applicant, noting his migration history as follows:
·The applicant first arrived in Australia on 17 October 2013 as the holder of a Student (Subclass 573) visa.
·Whilst onshore the applicant unsuccessfully applied for a further (TU-500 Student) visa to remain onshore and also unsuccessfully sought review of that refusal decision. The unsuccessful review result was finalised recently on 29 May 2020, which was just 2 weeks prior to this application being made.
·The applicant has not returned to his home country since 17 October 2013.
[1] As noted in the delegate’s decision record provided to the Tribunal by the applicant.
The delegate considered that this raised concern over the applicant’s intention to be a genuine temporary entrant as well as his incentive to return home. The applicant was invited to provide information or evidence to explain this as well as to demonstrate his intention to be a genuine temporary entrant and to show that he has an incentive to return home. The delegate noted that 2 extensions of time were approved until 30 June 2020 and 07 July 2020 to afford the applicant additional time to address the request, however no response was received by the date of the delegate’s decision (8 July 2020).
The delegate refused to grant the applicant the visa, finding that cl 602.215 was not met because the delegate was not satisfied that the applicant did genuinely intend to stay in Australia for the purpose for which the visa is granted. The delegate found that this clause is a requirement for the applicant to be granted the visa as he did not meet cl 602.212(6) (unfit to depart Australia).
The delegate considered that the documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care. Information provided does not state that the treatment he is seeking is unavailable outside of Australia.
In his Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate his intention or incentive to depart Australia now or in the near future. Departmental records confirm that the applicant has unsuccessfully applied for a further visa onshore and has sought a review. The delegate finds that the migration history strongly indicates that the applicant does not genuinely intend to remain in Australia on a temporary basis but instead seeks a visa pathway to remain in Australia for an extended period.
There are no non-disclosure certificates on the Department’s file.
The Tribunal
The applicant lodged an application for review with the Tribunal and provided a copy of the delegate’s decision record. He did not provide any updated medical information.
The applicant had been informed in correspondence from the Tribunal dated 21 July 2020 that any written material documents in support of his case should be provided as soon as possible, and that he should immediately let the Tribunal know if any of his contact details changed. No contact was made by the applicant nor were any documents provided.
On 13 September 2021 the Tribunal wrote to the applicant, proposing to hold a hearing via MS-Teams during the COVID-19 pandemic. The applicant did not respond to a request to inform the Tribunal as to the type of technology available to him.

15. The Tribunal considered it was reasonable to conduct the hearing by telephone and on 7 October 2021 the Tribunal sent 2 letters to the applicant. The first was an invitation to attend a hearing on 29 October 2021, requesting that he complete the Response to Hearing Invitation and return this to the Tribunal.

The second letter was sent pursuant to s 359(2) of the Act inviting him to provide certain information to the Tribunal. In this letter the Tribunal stated that in addition to considering the criterion on which the delegate refused the application (whether the applicant satisfies cl 602.215 in that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted), in this review the Tribunal will also consider whether he meets, at the time of making its decision, cl 602.212, which relates to the permitted purposes for the grant of this visa. The Tribunal noted that at the time of application on 12 June 2020, the evidence indicated that the applicant sought to remain in Australia until 12 September 2020 to seek medical treatment for himself in the form of psychological counselling, which indicated that he was relying upon cl 602.212(2).
Pursuant to s 359(2), the applicant was requested to provide information as to what medical treatment he has received and when it ended, as well as the details of the medical practitioner who carried out the treatment. It was noted that there is no evidence before the Tribunal about any current medical treatment he is seeking and he was requested to provide information showing how he meets the criteria in cl 602.212(2) or one of the alternative criteria in cl 602.212.
The invitation was sent to the last address provided in connection with the review and advised that, if the information and comments were not provided in writing by 21 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and comments and the applicant would lose his entitlement to attend the scheduled hearing [on 29 October 2021] to give evidence and present arguments to the Tribunal.
The applicant has not provided the information and comments within the prescribed period and no extension has been applied for or 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 notes that the applicant did not respond to the hearing invitation nor did he contact the Tribunal in any manner by 21 October 2021 nor to date. The applicant had been sent an email on 26 October 2021 informing him that the hearing had been cancelled and the Tribunal would consider any submissions received up until the time it makes its decision. Nothing has been received. The Tribunal decided to proceed to decision without taking further steps to obtain the information and comments.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 any one of the permitted purposes for the Medical Treatment visa set out in cl 602.212 and, if so, whether he meets cl 602.215.
Are the medical treatment requirements met?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the 7 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(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:
·the arrangements for treatment have been concluded;
·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia;
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community;
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded; and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
At the time of application, namely in June 2020, as set out above, the applicant sought to remain in Australia to seek medical treatment for mental health conditions. The Tribunal notes that the visa is a temporary visa which anticipates that treatment will be commenced and concluded at some stage. The applicant originally sought the visa for treatment to conclude in September 2020.
No evidence has been provided of any medical treatment undertaken since the time of application, nor of any medical treatment being sought now, any arrangements concluded to obtain such medical treatment, or of the arrangements for the costs and expenses for such treatment. The applicant claimed in his application form that he only sought to stay in Australia for 3 months (until September 2020); and while that time has passed, he has offered no explanation as to why he did not leave Australia in September 2020.
The Tribunal is not satisfied on the evidence before it that the applicant seeks to obtain medical treatment for which arrangements have been concluded to carry out that treatment and to pay for the costs and expenses of it.
Given the above findings, the requirements in cl 602.212(2) are not met.
There is also no evidence before the Tribunal that the applicant seeks to meet, or meets, any of the alternative grounds in cl 602.212.
Specifically, there is no evidence that he seeks the visa for the purposes of donating an organ for transplant; or to provide support for another person who seeks the visa for medical treatment; or that he is a citizen of Papua New Guinea who resides in Western Province of PNG; or that he is unfit to depart (as discussed further below).
Given the finding that the applicant does not meet any of the permitted purposes for the grant of a Medical Treatment visa, it may not be necessary to consider whether the applicant has a genuine intention to stay temporarily for the visa purpose: cl 602.215. However, for the sake of completeness, and given that this was the reason that the delegate refused to grant the visa, the Tribunal has considered this issue below.
Clause 602.215
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).
Is the applicant unfit to depart Australia?
As noted above, cl 602.215 does not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6). Clause 602.212(6) 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.
The applicant’s application form and passport are evidence provided by the applicant that he is 29 years of age. Thus, he cannot be considered “unfit to depart Australia” according to the mandatory requirements of cl 602.212(6).
Given the above finding, the requirements in cl 602.212(6) are not met, and thus cl 602.215(1) must be considered.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
Substantial compliance with conditions of relevant visas
In his application form the applicant said that he held a student visa (Subclass 573), in 2017 his student visa application had been refused, and he had complied with visa conditions. The delegate did not suggest that there was evidence to support that the applicant did not “substantially comply” with the conditions of his last substantive or bridging visas.
For the purposes of this decision, the Tribunal will accept that the applicant substantially complied with the conditions of his last substantive and bridging visas.
The applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject
Conditions 8101 and 8201 must be imposed, which prohibit work and limit study or training in Australia to a maximum period of 3 months, respectively. There is no evidence before the Tribunal as to his intention to comply with such visa conditions, other than the assertion in the visa application form that he will comply with these conditions.
For the purposes of this decision, the Tribunal will accept that the applicant intends to comply with the conditions to which the visa would be subject.
Other relevant matters
The Tribunal was not satisfied that the applicant intends to undertake medical treatment and it noted that he has provided no explanation for his continued presence in Australia since September 2020 (the end date of his proposed medical treatment).
Additional concerns relevant to the applicant’s intention arise from his migration history. This was raised as a concern by the delegate and although the applicant provided the delegate’s decision record to the Tribunal, he did not provide any comments to accompany the decision record to respond to the concern raised twice by the delegate (in the invitation to comment referred to in the decision record, and in the decision record itself) that his migration history undermines that he has a genuine intention to stay temporarily in Australia and that when asked by the delegate to provide information showing his intention to return to China, he did not respond. The Tribunal considers that his migration history, as well as his lack of explanation to the Tribunal of his reasons for remaining in Australia after September 2020, suggests that he seeks to remain in Australia permanently and that he does not have a genuine intention to stay temporarily in Australia for the purpose of undertaking medical treatment.
Conclusion in relation to cl 602.215
The Tribunal has considered the evidence. Even giving the applicant the benefit of the doubt in relation to the issues of substantial compliance and intention to comply with the conditions of the visa, the Tribunal notes that it is a year since the applicant lodged a Medical Treatment visa application and there is no evidence that he has had medical treatment in that time or that he seeks it now.
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 (namely medical treatment), having regard to the considerations set out in cl 602.215(1)(a) to (c).
Given the above findings, cl 602.215 is not met.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Christine Cody
Member
ATTACHMENT
Migration Regulations 1994
Schedule 2
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.
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).

[2021] AATA 5521

29 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction