SEO (Migration)

SEO (Migration) [2019] AATA 4823 (17 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Young Sook SEO
CASE NUMBER:  1805943
DIBP REFERENCE(S):  BCC2018/356129
MEMBER:Louise Nicholls
DATE:17 October 2019
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 17 October 2019 at 10:58am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – no genuine intention to stay temporarily – applicant has not held a substantive visa for at least 20 years – lack of compliance in the past – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of the Republic of Korea (South Korea) and is 70 years of age. She arrived in Australia on 14 January 1987. Over the years she has made applications for various permanent visas but has not been successful in her applications. She has held a series of bridging visas from time to time with the last bridging visa granted on 24 January 2018.
The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 16 January 2018. She provided the following documents to support her application; a photocopy of the biodata page of her South Korean passport issued on 14 November 2006, a medical report from Dr Simon Chen (retinal and cataract surgeon) dated 11 December 2017 and a Form 1507 (Evidence of intended medical treatment) completed by Dr Chen.
On 15 February 2018 a delegate of the Minister for Immigration refused to grant the applicant the visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.
This is an application for review of that decision and it was lodged on 6 March 2018. The applicant provided a copy of the delegate’s decision record with her application.
The applicant was represented in relation to the review by her registered migration agent.
On 16 September 2019 the applicant was invited, pursuant to the provisions of s.359(2) of the Act to provide relevant information.
Noting that the applicant had indicated in her application that she wished to remain in Australia from 16 December 2017 to 16 December 2018 for the purpose of medical treatment, the applicant was invited to;
·Advise when the medical treatment she had undertaken had ended, or when it was due to end.
·Provide any further evidence indicating that she had a genuine intention to stay temporarily for the purpose of medical treatment.
·Advise if she was over the age of 50 years and if she had applied for a permanent visa.
·If she had applied for a permanent visa, whether she met all the criteria for the grant of that visa other than the public interest criteria related to health.
On 28 September 2019 the applicant’s representative requested, by email correspondence, that the matter be determined on the papers.
The applicant has not provided the requested information within the prescribed period and no extension has been granted. Further the applicant’s representative requested that the matter be dealt with on “the papers”. The Tribunal considers that this request indicates that the applicant does not intend to provide the information and is content for the matter to be determined without a hearing on the material before the Tribunal.
In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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 has decided to proceed to decision without taking further steps to obtain the information. It notes that the applicant has not sought to provide any further information to support the application for review.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time of application, 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).
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
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.
The issue in this case is whether the applicant has a genuine intention to stay temporarily for the visa purpose.
Is the applicant unfit to depart Australia?
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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The applicant has provided a copy of her South Korean passport which lists her date of birth as 8 August 1949. She also notes this as her date of birth in her application for the visa[1]. On the evidence before it, the Tribunal accepts that the applicant is in Australia and is 70 years of age and thus, has turned 50. However there is no evidence that the applicant 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”. Further there is no evidence she is medically unfit to depart Australia as prescribed in cl.602.212(6).
[1] Department File BCC2018/356129 f.4 and 19
Given the above findings, the requirements in cl.602.212(6) are not met.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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).
The delegate’s decision record notes that the applicant arrived in Australia on 14 January 1987 and has never left. She has applied for a number of substantive visas from 1994 onwards but has not been successful in any of her applications for those visas. She has had significant periods where she has not held a visa and she also has held a number of bridging visas. She has also made several unsuccessful requests for Ministerial intervention.
On 20 December 2017 she attempted to lodge a Medical Treatment visa application but her application was invalid.
On 16 January 2018 the applicant made a valid application for a Medical Treatment visa.
In support of her application, the applicant provided a medical report from Dr Simon Chen from Vision Eye Institute in which he diagnoses bilateral dry age related macular degeneration, right posterior vitreous detachment, bilateral cataracts, bilateral dermatochalasis and bilateral myopia. The report noted that Dr Chen recommended a visual eye test and optical coherence tomography to assess her peripheral vision and to exclude retinal dystrophy. The applicant reportedly declined these tests. Dr Chen noted she may benefit from cataract surgery but this was not urgent. He stated that he had not made any further arrangements to see the applicant again.
The Tribunal notes that in the Form 1507 (Evidence of intended medical treatment) Dr Chen stated that the intended medical treatment is “Diagnostic visual field test and optical coherence tomography scan required”. However, despite this being the reason for the application for a medical treatment visa, Dr Chen stated that the applicant declined this further treatment. The applicant did not provide any further evidence that she had changed her mind and intended to undergo this treatment.
The applicant did not provide any further medical evidence in response to the Tribunal’s s.359(2) invitation nor had she provided any other documents relating to the her intention to stay temporarily in Australia.
As set out above the applicant does not meet the requirements in cl. 602.212(6). Thus the applicant is required to meet the requirements in cl.602.215.
The Tribunal has considered the evidence before it, but is not satisfied that the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.
The Tribunal has considered whether the applicant has complied substantially with the conditions of her last substantive visa. The applicant arrived in 1987 and there is no evidence before the Tribunal whether she complied with the conditions of any visa which may have been granted at that time. However, the Tribunal notes that she has not held a substantive visa for at least 20 years. In those circumstances the Tribunal considers that compliance with the conditions of her last substantive visa would carry little weight in the overall consideration of her application.
There is no evidence that the applicant failed to comply with any bridging visas granted, however, the Tribunal notes that there have also been long periods where the applicant has not held a visa at all.
There is no evidence before the Tribunal which indicates that the applicant intends to comply with the conditions to which a medical treatment visa would be subject. Generally medical treatment visas are subject to a “no work” condition. There is no evidence as to how the applicant supports herself and in these circumstances the Tribunal is unable to find that the applicant would abide by any “no work” condition which may be attached to the visa.
The delegate’s decision sets out the applicant’s history of visa applications and reviews, requests for Ministerial intervention and periods of unlawfulness. The applicant has not put forward any material to counter the history set out in the delegate’s decision record. The Tribunal notes that the applicant was the holder of bridging visas from time to time but also lived in Australia without a visa for at least 11 years in total. This indicates that she has had and continues to have, a strong motivation to remain in Australia notwithstanding her visa status.
Having regard to the considerations in cl. 602.215 (a) to (c) and the matters set out above, the Tribunal finds that the applicant does not intend to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal has put particular weight on the applicant’s visa history and conduct in Australia and the absence of any evidence, medical or otherwise, which indicates that she has a genuine intention to stay temporarily in Australia for medical tests or treatment.
Given the above findings, cl.602.215 is not met.
Conclusion
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.
Louise Nicholls
Senior 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).

[2019] AATA 4823

17 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice