Rojas Barrientos (Migration)

[2023] AATA 4471

Rojas Barrientos (Migration) [2023] AATA 4471 (1 November 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mrs Paola Rojas Barrientos

REPRESENTATIVE:  Mrs Taraneh Arianfar (MARN: 1913382)

CASE NUMBER:  2305689

HOME AFFAIRS REFERENCE(S):           BCC2023/529558

MEMBER:  Mara Moustafine

DATE:  1 November 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 01 November 2023 at 1:30pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary entrant – no response to s.359(2) invitation – loss of entitlement to hearing – depression – gastroesophageal disease – No Study condition – student visa application refused – No Further Visa condition – length of time onshore without departure – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215; Schedule 8, Conditions 8201, 8503

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 April 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).

1. The applicant is a 36-year-old national of Peru. She first arrived in Australia on 21 February 2010 as the holder of Student (subclass 572) visa and was granted a second Student visa on 14 February 2013. Her application for a Student (subclass 573) visa on 26 February 2015 was refused on 3 July 2015, a decision affirmed by the Tribunal on 23 June 2016. The applicant then applied for a Protection visa, which was refused on 10 October 2017, a decision affirmed by the Tribunal on 4 January 2023.

1. On 31 January 2023 the applicant applied for a Medical Treatment visa. 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).

1. With her application the applicant provided a copy of the biodata pages of her Peruvian passport, her Peru identification card and a Form 1507 (Evidence of intended medical treatment) signed by Dr Ignacio Ugarte on 25 January 2023 stating that the applicant required treatment for depression and gastroesophageal disease and required counselling by a psychologist, Dr Adriana Zapata-Delgado and further investigation, medication and referral to a gastroenterologist, Dr Paven Gokulan at St George Private Hospital, Kogarah for an endoscopy. In her application form, the applicant stated she would be under care from 31 January 2023 to 31 January 2024 and that her stay in Australia would be funded by her spouse/de facto partner. The applicant also submitted her partner’s personal bank statement and a business bank statement.

1. On 1 February 2023 the applicant was invited to comment on her immigration history and to provide evidence that she was a genuine visitor and had incentives to depart Australia if granted a visa. Despite being granted an extension of time to respond until 1 March 2023, the applicant failed to provide any information in response to the invitation for comment.

1. The delegate refused to grant the applicant the visa on 13 April 2023 because she was not satisfied that the applicant met the requirements of cl.602.215 of the Migration Regulations 1994 (the Regulations) which requires the applicant to genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. In particular, she highlighted that the applicant had been in Australia continuously for almost 10 years, had a spouse and three children here and had previously sought permanent protection. While she had established substantial ties to Australia, she had not provided any information about ties to Peru.

1. On 21 April 2023 the applicant lodged an application for review of the delegate’s decision, a copy of which she provided to the Tribunal for the purpose of the review. The applicant was represented in relation to the review.

1. On 29 August 2023, the applicant was invited, pursuant to the provisions of s.359(2) of the Act, to provide to the Tribunal information in writing by 12 September 2023 as follows:

   ·     Information about the medical practitioner and/or medical facility providing your treatment, including name, address and telephone number.

   ·     Information about your arrangements to carry out the medical treatment, including:

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

b)  the nature and estimated duration of your treatment;

c)  the proposed date(s) of your treatment; and

d)  the possible cost of your treatment and evidence that arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of your stay in Australia, including the expenses of any person accompanying you.

·     Any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment

1. The applicant was advised that if the Tribunal did not receive the information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the information and that the applicant would also lose any entitlement she might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

1. On 11 September 2023, the applicant’s representative requested an extension of time to provide this information and provided a letter from the applicant’s doctor dated 6 September 2023 stating that she was suffering from a number of gastrointestinal symptoms which needed further assessment by gastroscopy by a gastroenterologist at St George Hospital for which she was still on the wait list. These included epigastric pain, acid reflux, pressure in the stomach, food getting stuck and vomiting. Also provided was an email from an Administrative Officer at St George Hospital dated 1 September 2023 headed ‘Waitlist for Gastroscopy’ confirming that she was still on the wait list. The Tribunal granted the applicant until 26 October 2023 to provide the information requested.

1. On 20 October 2023 the representative requested a further extension of time to provide the information requested, due to ‘unforeseen medical challenges’ faced by the applicant’s 2- year-old son who was scheduled for a tonsillectomy surgery on 5 December 2023. Medical documentation for her son was also provided. The applicant was advised on 23 October 2023 that, after careful consideration, the Tribunal decided not to grant the applicant another extension of time as she was previously granted an extension of over six weeks to provide the information. The applicant was also invited to attend a hearing on 7 November 2023 with the option of a video-conference hearing to accommodate her need to care for her child. The applicant was again advised that, if the information requested was not received by 26 October 2023, the Tribunal could make a decision on the review without taking any further action to obtain the information and she would also lose her entitlement to a hearing under the Migration Act 1958.

1. On 27 October 2023, the applicant was advised that, as she did not provide a response by the prescribed date, she had lost her entitlement to a hearing and the hearing scheduled for 7 November 2023 had been cancelled. The applicant was advised that the Tribunal would proceed to make a decision on the review on the information before it and that if she wished to provide any further information addressing the issues under consideration, she should do so as soon as possible. No further information was received from the applicant.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 has a genuine intention to stay temporarily for the visa purpose.

1. Relevantly to this matter cl. 602.215 provides:

(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.

Is the applicant unfit to depart Australia?

1. 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, 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.

1. According to the biodata pages of her passport, the applicant was born on 3 August 1987. As she has not turned 50, the requirements in cl.602.212(6) are not met. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

1. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

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

1. 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).

1. As set out above the applicant does not meet the requirements in cl 602.212(6).

1. The applicant sought treatment for ailments related to depression and gastroesophageal disease. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

1. With regard to the requirement that the applicant must have a genuine intention to stay temporarily for the purpose of medical treatment or related matters, the Tribunal notes that in her application form, the applicant stated that she would be under care from 31 January 2023 to 31 January 2024 and her doctor indicated that she required counselling by a psychologist for her depression and further investigation, medication and referral to a gastroenterologist for her gastroesophageal disease.

1. The only medical information provided to the Tribunal by the applicant is a letter from her doctor stating that she requires a gastroscopy and an email from an administrative officer at St George Hospital stating that she is on a wait list. In the Form 1507 dated 25 January 2023 the applicant’s doctor indicated that she was being referred to psychologist Dr Adriana Zapata-Delgado for counselling and Dr Paven Gokulan, gastroenterologist at St George Private Hospital regarding an endoscopy. However, she provided no evidence of any consultations having taken place with these doctors or that arrangements to carry out the medical treatment had been concluded with them, including confirmation that they agreed to treat the applicant, the nature and estimated duration of her treatment; the proposed dates of her treatment; the possible cost of her treatment and evidence that arrangements had been concluded for the payment of all costs related to the treatments and all other expenses of her stay in Australia, including the expenses of persons accompanying her. Although the applicant indicated that her treatment would be conducted between 31 January 2023 and 31 January 2024, after nine months there is no evidence before the Tribunal that the applicant has started any of the treatments for which she sought the visa. Nor did the applicant provide any information indicating that she had a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

1. There is no evidence that the applicant did not comply with the conditions of her last substantive visa, the Student visa granted on 14 February 2013. More telling, however, is that the applicant has not held a substantive visa since 1 March 2015 when this visa ceased and has not departed Australia.

1. The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject, in particular condition 8201 (No studies) and 8503 (The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia). As the applicant applied for a Student (subclass 573) visa in 2015 on 26 February 2015 which was refused on 3 July 2015, the Tribunal cannot exclude the possibility that the applicant may seek to study while in Australia. It is therefore not satisfied that the applicant will comply with condition 8201.

1. With regard to condition 8503, the Tribunal considers that the applicant has demonstrated a strong motivation to remain in Australia, given the 10 years she has spent here without departure, the presence of her husband and three children here and her unsuccessful application for a permanent Protection visa, which she pursued through merits review at the Tribunal. In light of this, the Tribunal is not satisfied that if condition 8503 were placed on any visa, the applicant might not seek to obtain a waiver of such a condition.

1. Having considered all the evidence before it, including the absence of evidence that the applicant has commenced any of the medical treatments for which she sought the visa, her failure to respond to the Tribunal invitation to provide information about the medical treatment and her genuine intention to stay temporarily in Australia, the presence of her family here and her unsuccessful application for a permanent Protection visa, which she pursued through merits review, the Tribunal finds that the applicant has a strong motivation to remain in Australia indefinitely and is attempting to utilise the Medical Treatment visa as a means of maintaining ongoing residence. The Tribunal is not satisfied that the applicant intends to stay in Australia temporarily for the purpose of medical treatment.

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

1. 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

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

Mara Moustafine 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).