Nguyen (Migration)

[2019] AATA 5393

Nguyen (Migration) [2019] AATA 5393 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Tam Nguyen

CASE NUMBER:  1730925

DIBP REFERENCE(S):  BCC2017/3953725

MEMBER:Stavros Georgiadis

DATE:13 August 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 13 August 2019 at 4:06pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – non-appearance at scheduled hearing – unfit to depart Australia – genuine temporary entrant – insufficient evidence before the Tribunal – no general duty to undertake own enquiries – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

CASES
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

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 November 2017 to refuse to grant the visa applicant (the applicant) a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 October 2017 on the grounds that she was 23 weeks pregnant and suffering stress and depression. 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 (the Regulations).

3. The delegate noted the applicant has been residing in Australia since arrival in 2012 and has not held a substantive visa since 2016. The delegate refused to grant the applicant the visa because the delegate considered the applicant had failed to comply with past visa conditions and the applicant’s circumstances were not sufficiently compelling or exceptional to warrant departure from the requirement that the visa applicant genuinely intends to stay temporarily only in Australia for the purpose for which the visa is granted - for medical treatment.  A copy of the delegate’s decision was attached to the application for review.

4. The applicant was due to appear before the Tribunal on 9 July 2019 to give evidence and present arguments. On the afternoon of the scheduled hearing the applicant requested an adjournment on medical grounds, which the Tribunal granted. The matter was then rescheduled for hearing on 13 August 2019 and notices provided to the applicant. The applicant did not attend the rescheduled hearing of 13 August 2019 (citing reasons of caring for another person) and an adjournment was not requested, or granted.

5. The Tribunal had arranged for an interpreter in the Vietnamese and English languages to assist in the scheduled hearings on both occasions.

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 intends to remain in Australia temporarily for this purpose and if not, whether there are compelling or exceptional circumstances to warrant departure from the requirement that the visa applicant genuinely intends to stay temporarily only in Australia for the purpose for which the visa is granted.

   Is the applicant unfit to depart Australia?

8. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven 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 (6) relates to an applicant being medically unfit to depart Australia. It 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, [here the visa conditions include: 8101 8506 8207 8564 8401]

   ·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. The Tribunal notes from the file documents the applicant’s date of birth of 13 July 1987 (32 years of age).  The Tribunal accepts from this that the applicant has not turned 50. There is no evidence before the Tribunal from a Medical Officer of the Commonwealth that the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or condition. The Tribunal accepts that the applicant has not been assessed by a Medical Officer of the Commonwealth for any such purpose.

10. On this basis, the Tribunal finds that the applicant does not meet the collective requirements set out in cl.602.212 (6)(a) - (f). There is no suggestion that any of the other alternative sub criteria are relevant in this case. .

11. Given the above findings, the requirements in cl.602.212(6) are not met. Accordingly cl.602.215(1) applies.

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

12. Clause 602.215 requires generally 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).

13. As the applicant does not meet cl.602.212(6) (medically unfit to depart criterion) for the aforementioned reasons, the Tribunal has turned to consider whether or not the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl.602.215(1)(a) to (c) and any other relevant matter - including whether there are compelling or exceptional circumstances to warrant departure from the requirement that the visa applicant genuinely intends to stay temporarily only in Australia for the purpose for which the visa is granted.

14. The Department’s movement records show that the applicant arrived in Australia on 25 September 2012 as the holder of a (Class UF) Subclass 309 Temporary (Partner) visa valid to 6 September 2016 and has not departed Australia since. That visa was the applicant’s last substantive visa held.  Since then she has been issued with a number of Bridging visas, currently holding a WE-505P000 with conditions of no work or study 8101 & 8207 respectively; notify of any change of address 8506; no criminal conduct 8564; and report at a specified time and place as required 8401.

15. The applicant has failed to attend the scheduled hearings. The Tribunal accepts that medical grounds existed in respect of the first scheduled hearing of 9 July 2019 and accordingly, granted an adjournment of the matter to 13 August 2019 and notified the applicant, in writing, of same.

16. On the evening prior to the rescheduled hearing of 13 August 2019, the applicant sent an e-mail to the Tribunal that attached a Medical Certificate from Dr Therese Phan dated 12 August 2019 setting out the following:

17. The Tribunal notes the reasons provided by the applicant in the aforementioned certificate but does not accept, in the circumstances raised, that the applicant was not fit or capable to provide evidence to the Tribunal.  The Tribunal has sought to hear evidence to establish whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl.602.215(1)(a) to (c).  This would include 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. In the absence of any appearance by the applicant, the Tribunal is unable to make such a positive finding due to the lack of evidence - including sworn testimony.

18. The Tribunal also sought potentially, to consider whether there are compelling or exceptional circumstances to warrant departure from the requirement that the visa applicant genuinely intends to stay temporarily only in Australia for the purpose for which the visa is granted. Again, in the absence of any appearance by the applicant, the Tribunal is unable to make such positive finding.

19. The Tribunal is satisfied that the applicant had, prior to the hearing, been notified by the Tribunal, in writing, that it had considered the material before it but was unable to make a favourable decision on this information alone. As aforementioned, the Tribunal wished to interview the applicant to explore information provided and to assess oral evidence from the applicant on material considerations. The Tribunal is satisfied that written advice had been sent to the applicant inviting her to appear before the Tribunal to give evidence and present arguments in support of the application. The Tribunal has already adjourned once to allow this to occur.  Also. there was no further adjournment request in respect of the non-appearance on 13 August 2019.

20. Although in the exercise of its review function the Tribunal may obtain such information as it considers relevant, the High Court established in the case of Minister for Immigration and Citizenship v SZIAI that there is not imposed upon the Tribunal “a general duty to undertake its own enquiries in addition to information provided to it by the applicant and otherwise under the Act.” (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 [1]).

21. Having considered the material before it and in the absence of any sworn evidence, the Tribunal is not satisfied that the applicant intends to remain in Australia temporarily for the purpose for which the visa was granted having regard to the considerations set out in cl.602.215(1)(a) to (c).  The Tribunal is also not satisfied that there are compelling or exceptional circumstances to warrant departure from the requirement that the visa applicant genuinely intends to stay temporarily only in Australia for the purpose for which the visa is granted.

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

23. 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

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

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 2

    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).