Ouyang (Migration)

[2024] AATA 745

Ouyang (Migration) [2024] AATA 745 (22 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Guizhen Ouyang

REPRESENTATIVE:  Ms Qi Wen Chan

CASE NUMBER:  2303132

HOME AFFAIRS REFERENCE(S):          BCC2022/982183

MEMBER:Naomi Schmitz

DATE:22 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2024 at 7:15am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary entrant – declined invitation to hearing – decision on the papers – treatment for kidney stones – continuous residence in Australia for over four years – migration history – applied for permanent residency – lack of updated medical evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 16 February 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 7 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 delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted: cl 602.215.

4. On 6 March 2023, the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 8 December 2023, the Tribunal invited the applicant under s 359A of the Act to comment on or respond to information that would be a reason or a part of the reason for affirming the decision under review, namely the applicant’s migration history and time onshore in Australia. The notice stated that the applicant’s migration history suggested that the applicant wished to stay permanently in Australia, including what is set out below:

   1.   Your migration records indicate that:

   (a)    You arrived in Australia on 15 April 2019 on a Tourist visa (subclass 600). Apart from a brief departure of approximately two months from 6 July 2019 to 9 September 2019 you have remained in Australia. Your Tourist visa (subclass 600) visa ceased on 9 December 2019.

   (b)    On 26 September 2019 you were granted a Bridging visa (subclass 010), and you have been granted a series of Bridging visas since then.

   (c)    On 19 September 2019 you applied for a [permanent visa] and the application was refused on 20 October 2020. You sought review of the decision at Tribunal and judicial levels. The Tribunal affirmed the decision on 11 January 2022. You applied for judicial review on 21 January 2022 which resulted in a Minister win on 16 November 2022.

   (d)    On 7 December 2022 you applied for a Medical Treatment (subclass 602) visa. This was refused on 16 February 2023. You made an application for review at the Tribunal on 6 March 2023 and this refusal is the decision under review in this proceeding.

   This information is relevant to the review because your migration history suggests that you wish to stay permanently in Australia.

   2.   You remained unlawfully in Australia for a brief period from 16 February 2022 until 22 February 2022 when one bridging visa ceased and until another was granted.

   This information is relevant to the review because your past illegal status raises doubts that you have a genuine intention of staying temporarily in Australia and suggests that you wish to stay permanently in Australia.

6. The Tribunal also on 8 December 2023 and in the same letter invited the applicant under s 359(2) of the Act to provide the Tribunal with information to address the following:

   1.     Immigration records demonstrate that you arrived in Australia on 15 April 2019. Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   2.     In your medical treatment visa application lodged on 7 December 2022, you claimed that you would like to remain in Australia from 12 December 2022 to 30 June 2023 to seek medical treatment for kidney surgery. Why have you remained in Australia after 30 June 2023?

   3.     The Tribunal does not have information concerning your medical treatment. Please provide information regarding:

   a.Confirmation from your medical practitioner and/or medical facility that they agree to treat you;

   b.When you were first diagnosed with those condition(s);

   c.The nature and estimated duration of the treatment;

   d.The proposed date(s) of treatment;

   e.The prognosis of your medical condition(s); and

   f.The cost of your treatment.

   4.     Noting you have been in Australia since 15 April 2019 please provide any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

7. The invitation to comment on or respond to information and request for information advised that if the applicant did not comment on or respond to the information put to her under s 359A and did not provide information pursuant to s 359(2) in writing by 22 December 2023, or an extension of time had not been sought by that time, the applicant would lose any entitlement she might have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal would make a decision on the information it had without taking any further steps to allow or enable the applicant to appear at the Tribunal: s 360(3) of the Act.

8. On 11 December 2023, the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing by Microsoft Teams technology commencing at 11:30 am (VIC time) on 18 January 2024 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

9. On 22 December 2023, the representative provided various information to the Tribunal including: a statutory declaration by the applicant dated 20 December 2023 regarding her migration history and medical condition; two letters from the applicant’s general practitioner (GP) Dr Josh Ng dated 28 November 2022 and 12 April 2023; various discharge summaries and letters from Moorabbin Hospital, Monash Health; the applicant’s divorce agreement dated 1 June 2006; permanent residency registration cards for the applicant, the applicant’s daughter and ex-husband; a letter of support from the applicant’s daughter dated 19 December 2023; the applicant’s daughter’s passport and certificate of title showing property ownership in China; and the representative’s submissions.

10. On 16 January 2024, the representative wrote to the Tribunal and advised that the applicant did not wish to attend the scheduled hearing and consented to the Tribunal making a decision on the papers.

11. The Tribunal Member considered the email correspondence. As the applicant declined to participate at a hearing and consented to a decision on the papers, on 16 January 2024, the hearing was cancelled, and the applicant was notified of the hearing cancellation by email. The Tribunal has proceeded to decide the review application on the evidence available to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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) 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.

14. The applicant is currently residing in Australia. Information provided by the applicant shows that she has turned 50, being born in February 1964 and is thus currently 59 years of age. The applicant has applied for a permanent visa while in Australia which was refused. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    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.

    Visa Application

15. The applicant is a citizen of China. She identified that she was residing in Clayton South, Victoria, Australia and was married. At the time of application, the applicant wrote that the purpose of her stay in Australia was for medical treatment, namely kidney surgery. She indicated that she would be under medical care for approximately six months from 12 December 2022 until 30 June 2023. She declared she had a tentative surgery scheduled on 12 December 2022 and would thereafter require three months recovery and during this time could not undertake international travel. She indicated subsequent surgeries may be required. She declared that her stay would be self-funded with savings of $19,237.35. Banking records namely, a Commonwealth Bank of Australia account statement dated 4 December 2022 was provided confirming the same.

16. The applicant further declared that she had complied with the conditions of all previous visas held including the authorised periods of stay; that she had previously applied for a [permanent visa] that was refused and resided in Malaysia from December 2017 to September 2019.

17. Attached to the visa application was a Form 1507 signed by Dr Hosh Ng (Dr Ng) on 23 November 2022. It detailed the medical condition requiring treatment as ‘right kidney abnormal requiring surgery with Casey’. The treatment information was ‘Hospital’.

18. A letter from Dr Ng dated 28 November 2022 was also provided stating:

    [The applicant] is known to have multiple large stone Rt kidney with non functioning Rt kidney. She had (sic) seen at Casey Urology team and planned Rt percutaneous nephrolithotomy + retrograde intrarenal surgery + Diagnostic flexible cystoscopy on 12^th Dec 2022. She would be requiring 3 month recovery time and it is not recommended to fly during this period.

    She is going to have reviewed by urology surgeon post procedure and she most likely would be required to go ahead to have kidney removal if the procedure fails to improve her kidney function.

    As she is being managed by public hospital we unable to provide definite date of her kidney surgery.

    Information provided to the Tribunal

19. The applicant provided a statutory declaration dated 20 December 2023. In it, she detailed her migration history which is consistent with the migration history outlined in the delegate’s decision record and the Tribunal’s letter dated 8 December 2023. She admits that she did not hold a valid visa from 16 February 2022 until 22 February 2022 because her previous agent failed to apply for a bridging visa on time. She states that a Bridging visa A was granted on 23 February 2022 and since then, she has continued to maintain a lawful status in Australia.

20. The applicant declared that she had remained in Australia since her arrival on 9 September 2019 due to a pending [visa application] at the time. [Details of visa application redacted].

21. She details that while waiting for a decision on her application for judicial review concerning her [permanent visa application], she was diagnosed with ‘multiple large stone’ in her right kidney and her right kidney was non-functioning. She claims her first CT scan was conducted on 14 April 2022 and she was then referred to Moorabbin Hospital, Monash Health, for a Lithotripsy review on 25 July 2022.

22. She states she underwent three surgeries including on 11 May 2023, 25 May 2023, and 20 June 2023. Discharge summaries for 11 May 2023, 25 May 2023, and 5 July 2023 were provided to the Tribunal. The Tribunal could not locate any records to support the applicant’s 20 June 2023 hospital admission. A discharge summary dated 19 January 2023 for a ureteroscopy and pyeloscopy was provided to the Tribunal.

23. The applicant further declared that after completing her three surgeries, her doctor recommended that she take a ‘six-month break’ before conducting a health review and another surgery. The applicant claims that around October 2023, she received a telephone call from her treating doctor [unknown] stating that she ‘may require’ another review to determine if surgery is required. She stated she is unsure when the review will be conducted but anticipated it would be conducted sometime ‘early next year’. She claimed that once she had completed ‘all my treatment’ and was cleared by her doctors to depart Australia she would return to China to be with her daughter.

24. The Tribunal received a letter from the applicant’s GP Dr Ng dated 20 December 2023 which stated:

    To whom it may concern

    [The applicant] is known to have multiple large stone Rt kidney on CT done
    14/04/2022 with non functioning Rt kidney. She had seen at Monash Health Urology team and she had 1st surgery done on 11/05/2023 where she had Rt pyeloscopy and attempted PCNL and stent insertion. Due to the complexity of her kidney condition and significant size of kidney stone. She subsequently required to had multiple surgeries. She had Rt ureteroplyeloscopy +laser+ stent change on 25/05/2023 and another Rt ureteropyeloscopy + laser + stent exchange on 20/06/2023.

    She has suffered complication from the surgery where she required to use multiple course of antibiotics. She has seen by urology team and recommended to have further surgery but due to her current health condition, she is unable to proceed and has been suggested to review in another 6 months. She is currently not recommend to travel oversea at this stage and is advisable to complete her treatment with urology team at Monash.

    We would very much appreciate for your understanding and kind consideration in her circumstances.

25. The Tribunal received submissions from the representative which made the following salient points:

    a.The applicant first arrived in Australia on 15 April 2019 and returned to China on 6 July 2019 while holding a Visitor visa (Subclass 600). She subsequently returned to Australia on 9 September 2019 and has remained in Australia since;

    b.The applicant accepts the migration history detailed in the Tribunal’s letter dated 8 December 2023 and delegate’s decision record and claims her unlawful status was due to her prior representative failing to apply for a bridging visa on her behalf;

    c.The applicant seeks the Medical Treatment visa to seek treatment for kidney stones and a non-functioning kidney;

    d.The applicant has undertaken three surgeries including on 11 May 2023, 25 May 2023, and 5 July 2023 and an earlier ureteroscopy and pyeloscopy on 19 January 2023;

    e.The applicant requires ‘further surgery to treat her kidney stones and non-functioning kidney’ but due to her ‘current poor health’ is ‘recommended by medical professional to rest in between before receiving further treatment’;[1]

    f.‘…it is anticipated that she will have another medical review sometime early next year to check on her health condition before proceeding with further treatment’;[2]

    g.The applicant’s GP claims she is currently unfit to travel overseas or board a long duration flight;

    h.The applicant has one child, a daughter who resides in China and whom the applicant has raised as a single mother after her divorce on 1 June 2006. The applicant wishes to be reunited with her; [3]

    i.The applicant’s daughter owns a property in Dongxihu District, Hubei Province China where the applicant will stay once she returns to China;

    j.The applicant has complied with all previous visa conditions and intends to abide by any future conditions to which her visa is subject; and

    k.[Details of previous visa application redacted]. She has no intention to apply for another [permanent visa] and intends to return home as soon as she completes the required medical treatment for her kidney.

    [1] Representative’s submissions at [9]

    [2] Ibid [10]

    [3] Ibid [14] and [15]

    FINDINGS and REASONS

26. In the present case, the applicant seeks the visa for the purposes of medical treatment namely for her kidney. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

27. There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicant’s last substantive visa, or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa.

28. The Tribunal has considered all relevant matters. The applicant first arrived in Australia on 15 April 2019, on a Visitor visa (Subclass 600) which ceased on 9 December 2019. Since this time she has not held a substantive visa. Apart from one brief departure between 6 July 2019 and 9 September 2019, the applicant has maintained a continuous residence in Australia for over four years using a series of bridging visas. The Tribunal regards this as a significant period of time which the Tribunal places adverse weight on.

29. The Tribunal has also had regard to the applicant’s migration history which indicates that she applied for permanent residency, namely a [permanent visa]. The applicant subsequently unsuccessfully sought both administrative and judicial avenues of review. The applicant’s conduct in seeking a permanent visa strongly indicates that she seeks to remain permanently or indefinitely in Australia. The Tribunal places adverse weight on the applicant’s migration history

30. During the applicant’s time in Australia, the applicant has been an unlawful-non-citizen for a period of seven days. The applicant claims this was due to her prior representative failing to apply for a bridging visa on time. The Tribunal has carefully considered the applicant’s claims in conjunction with other evidence. Given the applicant’s time onshore, and it being on one discrete occasion totalling seven days, the Tribunal is prepared to accept that this was an aberration and places limited weight on this period.

1. The Tribunal has also considered the applicant’s claims regarding medical treatment in Australia. Whilst the Tribunal accepts that the applicant has suffered from kidney stones and undertaken multiple surgeries at Moorabbin Hospital, including on 11 and 25 May 2023, and 5 July 2023, there is no subsequent medical evidence to support that she is currently undergoing medical treatment or requires further review or kidney surgery. The Tribunal has had regard to the contents of Dr Ng’s letter outlined in [24] above, but as he is a GP rather than a qualified surgeon or part of the applicant’s urology team at Moorabbin Hospital, Monash Health, the Tribunal does not regard him as being qualified to make these findings which appear to be based on the applicant’s instructions during her GP consultation on 20 December 2023.

2. Of significance, the Tribunal notes that there is no medical evidence to support any post-surgery complications (such as hospital presentations to emergency in the intervening period or prescription medications for antibiotics) or further or updated reports or findings from the applicant’s urology team or any member of Monash Health that the applicant requires further surgery or medical review. The Tribunal further notes that more than six months have lapsed since the applicant’s last surgery in July 2023 and therefore the Tribunal would expect medical evidence to be available to support these claims. The Tribunal considers the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) indicates that the applicant seeks the medical treatment visa to maintain an ongoing residency in Australia.

3. Further there is no evidence that the applicant could not seek medical treatment in her home country of China. There is also no medical evidence from the applicant’s urology or Monash Health team to support that she is unable to depart Australia due to her medical condition.

4. There is no information or evidence before the Tribunal regarding the applicant’s personal and economic circumstances that would encourage her to return to her home country at the end of the proposed stay. For example, the applicant’s family composition, her relationship with her family members, the applicant’s employment prospects or property ownership. The Tribunal notes that nothing to date has motivated the applicant to return to China, including her only daughter, who she raised as a single parent since her 2006 divorce and claims to have a ‘close relationship’ with and who is prepared to offer her accommodation upon her return.

5. On the basis of the applicant’s migration history and the lack of updated medical evidence from the applicant’s treating specialists, the Tribunal does not have confidence, and is not satisfied, that her personal and/or economic circumstances are conducive to her returning to China.

6. Overall, the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

7. Given the above findings, cl 602.215 is not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa.

   DECISION

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

   Naomi Schmitz
   Member