OCAMPO VALERO (Migration)

[2023] AATA 3659

OCAMPO VALERO (Migration) [2023] AATA 3659 (13 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leonardo Andres OCAMPO VALERO

REPRESENTATIVE:  Mr Adam Khaze (MARN: 0960138)

CASE NUMBER:  2301185

HOME AFFAIRS REFERENCE(S):         BCC2022/518986

MEMBER:Luke Hardy

DATE:13 October 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 13 October 2023 at 3:19pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – substantial compliance with visa conditions – lengthy period of unlawful residence – applicant’s wife in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 57, 65, 362, 379
Migration Regulations 1994, Schedule 2, cls 602.211

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 13 January 2023 to refuse 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 5 December 2022. 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 applicant has a substantial migration history in Australia. On 3 March 2006 he was granted a Student (subclass 570) visa valid until 17 April 2008. On 28 March 2008, he arrived in Australia. On 17 April 2008, he was granted permission to work on a renewed Student (subclass 570) visa valid until 1 September 2008.

4. The applicant overstayed his last Student visa, becoming an unlawful non-citizen on 2 September 2008. He remained unlawfully here for several years. Then, on 11 December 2015, he lodged an application for Protection visa and was granted a concomitant bridging (subclass 030) visa. On 21 April 2017, a delegate of the Minister refused the Protection visa application, which decision was then affirmed by the Refugee Review Tribunal on 3 November 2021. The applicant then had 28 days on his bridging visa to depart Australia but did not do so. Hence he became unlawful again.

5. Just over a year later, on 5 December 2022, the applicant lodged the application for a Medical Treatment (subclass 602) visa. As noted that application was refused on 13 January 2023.

6. In the refusal decision, the delegate noted that the applicant had declared himself married to a spouse who was residing in Australia.

7. On 5 December 2022, the delegate sent the applicant  an invitation under section 57 of the Act to comment on his migration history, and to provide evidence of being a genuine visitor with incentives to depart Australia if you were granted a visa. The applicant was given seven days to respond, but no response was received. In the refusal decision, it was noted that the applicant had first arrived in Australia over 14 years earlier as the holder of a Student (subclass 570) visa and had never left Australia. The other visa applications were also mentioned. The delegate drew the applicant’s attention to having spent over seven years in Australia as an unlawful non-citizen.

8. The adviser gave reasons for the refusal of the visa being that, under Policy, Medical Treatment visas should not be granted to applicants who maintain ongoing residence in Australia or make protection claims in Australia. The delegate observed that the applicant had been in Australia continuously for almost 15 years on temporary visas, if on any visa at all. The delegate mentioned that the applicant had declared having a wife in Australia and that he not provided any information about any ties he might have to Colombia, such as other family members, or an offer of employment, or bank deposits held, or ownership of property. The delegate concluded that the applicant merely wished to remain permanently in Australia.

9. The applicant sought review of the delegate’s decision and the matter was constituted to me.

10. On 21 September 2023, the Tribunal wrote to the applicant advising him that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 13 October 2023. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal might make a decision on the case without further notice. The Tribunal also sent him SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. Both messages evidently reached the mobile telephone number provided.

11. On 12 October 2023, the Tribunal received the following request from the applicant’s representative:

    We are writing about the above application and the upcoming hearing scheduled. We kindly request an extension for our attendance at the hearing due to ongoing collaboration with the applicant on our submissions.

    This extension will enable us to present a more comprehensive and well-prepared argument that will serve the best interests of all parties involved.

    Your understanding and consideration of our request for additional time are greatly appreciated. We remain committed to a fair and thorough resolution of this matter and believe that the extension will facilitate a more productive hearing.

    Thank you for the consideration.

12. I gave this request all due consideration. However, I decided at least to commence hearing the matter at the hearing scheduled and, on the same day, the Tribunal communicated my response as follows:

    Thank you for your email. The Presiding Member in charge of this matter has advised that, he will not grant the request for an extension to attend the hearing scheduled on the 13 October 2023.

    The Member has advised that, the applicant may bring evidence of any treatment he has actually had in the last 12 months for discussion at the hearing if required.

    If there is a need for further hearing or information the Member will consider that tomorrow at the hearing.

    I am therefore advising that, the hearing for tomorrow will go ahead as scheduled.

    If you have any questions, please contact us immediately at [email protected], or call 1800 228 333.

13. No response to this email was received.

14. The applicant did not appear on the day of the hearing at the scheduled time. There has been no explanation for his failure to appear. I checked with my Associate whether any communications might be in transit from the Tribunal registry to my electronic files. My Associate gave me the following information:

    No further messages after I sent a letter advising that … the postponement is refused.

    A reminder [SMS] message was also sent to the applicant yesterday advising [him] of the hearing scheduled for today 13/10/23[.]

15. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5) of the Act, the invitation was received and understood, and that two separate SMS reminders were also sent to the review applicant about the hearing. In the 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.

16. For the following reasons, I have decided that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

    Is the visit for medical or related purposes?

18. 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.

19. In this case, the applicant sought a visa for treatment of hypothyroidism, dyslipidaemia and low testosterone levels. He submitted a 1507 form in which a doctor attested to his requiring treatment for these three conditions.

20. The applicant sought a visa to cover his treatment for the from 10 December 2022 to 30 April 2023.

21. In view of the applicant apparently having remained in Australia for over five months since 30 April 2023, I needed to hear him give evidence in oral exchange as to whether he genuinely needed, and continued to need, the visa sought.

22. I needed the applicant to tell me if hypothyroidism requires no more than a prescribed dosage of tablets.

23. I needed the applicant to tell me if dyslipidaemia also requires no more than a prescribed dosage of tablets.

24. I needed the applicant to tell me if low testosterone levels could not simply be treated with a topically applied unguent.

25. I needed the applicant to discuss with me what medications he had not only been prescribed in the last year or so, but also what medications he actually had dispensed. I needed him to discuss what additional treatment he might have received or required.

26. I needed the applicant to tell me if any of the treatment he required could not affordably be provided in Colombia.

27. Without more from the applicant than appears in his files to date, I am not able to be satisfied that he meets the requirements in cl 602.211 of the Act. The decision under review must be affirmed.

    DECISION

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

    Luke Hardy
    Member