Si (Migration)

[2022] AATA 1495

Si (Migration) [2022] AATA 1495 (27 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhenyu Si

CASE NUMBER:  2014082

HOME AFFAIRS REFERENCE(S):          BCC2020/2225288

MEMBER:Naomi Schmitz

DATE:27 April 2022

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 27 April 2022 at 12:10pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – current medical evidence – substantial compliance with conditions of previous visas – lengthy period of unlawful residence – no work condition – maintaining ongoing residency in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 362B
Migration Regulations 1994, Schedule 2, cls 602.212, 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 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 2 September 2020. 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. On 16 September 2020 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 17 September 2020 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 31 March 2022 the Tribunal wrote to the applicant for two reasons.

6. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:00am on 19 April 2022 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.

7. The second reason was to request under s.359(2) of the Act that the applicant provide the Tribunal with information to address the following:

   ·Immigration records demonstrate that your last arrival in Australia was on 28 August 2000 on a Business (Short Stay) visa (subclass 456). Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   ·In your medical treatment visa application lodged on 2 September 2020, you claimed that you would like to remain in Australia from 1 September 2020 until 1 March 2021 to seek medical treatment for ‘antidepressant and blood pressure mediation’. Why have you not departed Australia since then?

   ·The Tribunal does not have current medical evidence concerning your medical treatment. Please provide a current medical report detailing your medical condition(s) including:

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

   o    What your current medical treatment for those condition(s) involves and evidence of current treatment;

   o    The prognosis of your medical condition(s); and

   o    When does the medical treatment you have undertaken end or when is it due to end?

   • Noting you have been in Australia since 28 August 2000 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

8. The request for information was accompanied by various administrative matters, and advised the applicant that if the information was not provided in writing by 14 April 2022, the Tribunal hearing scheduled on 19 April 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act. The applicant did not provide information as requested in the letter issued pursuant to s.359(2) of the Act.

9. On 14 April 2022 at 5:21pm the applicant wrote to the Tribunal and advised that he did not wish to attend the hearing and consented to the Tribunal making a decision on the papers. The email stated ‘I decide not to attend the hearing, plases [sic] make decision according to the documents provided, thanks’.

10. On 19 April 2022 the Tribunal considered the applicant’s email correspondence. As the applicant declined to participate at a hearing, on 19 April 2022, 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. ^[1]

    [1] Section 362B [Part 5] Migration Act 1958 (Cth)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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. Documents provided by the applicant show that the applicant has turned 50, being born on 5 May 1967 and is thus currently 54 years of age. The applicant has applied for one 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.

15. The delegate’s decision record detailed the applicant’s migration history.

16. The applicant first arrived in Australia on 28 August 2000 and has not departed since.

17. Whilst onshore the applicant applied for a [Permanent] visa. The application was refused on 17 November 2000.

18. The applicant sought review of the delegate’s decision at the Tribunal. The Tribunal affirmed the decision on 17 April 2001.

19. The applicant subsequently sought Ministerial Intervention regarding his immigration status. This was not considered.

20. The applicant has remained in Australia as an unlawful non-citizen for approximately 19 years since 2 October 2001 until 20 September 2020.

21. As a result of applying for the Medical Treatment visa on 21 September 2020, the applicant was issued with a Bridging visa E (Subclass 050) with permission to work.  

22. The Department sent the applicant a natural justice letter regarding his migration history. The applicant did not provide a response.

    VISA APPLICATION

23. The applicant identified that he was in Australia. He is a citizen of China. He was born in Luohe, Henan, China. At the time of application the applicant wrote the purpose of his stay in Australia was medical treatment. His stay would be self-funded. He indicated he would be under medical care for six months from 1 September 2020 until 1 March 2021 to seek treatment for ‘antidepressant and blood pressure medication’.

24. Attached to the visa application was a 1507 Form signed by Anthony Chu on 31 August 2020. It detailed the medical condition requiring treatment as ‘depression and hypertension’. The treatment information was ‘antidepressants and blood pressure medication’. The details of the medical practice where treatment is to be provided were ‘Sirius Health’ with Anthony Chu as the treating medical practitioner. No other medical information was provided with the application or in connection with the review.

25. At the time of application the applicant declared that he was divorced. In the applicant’s visa application he admitted to overstaying in Australia and having a [permanent] visa application refused.

    FINDINGS and REASONS

26. In the present case, the visa applicant seeks the visa for the purposes of medical treatment for ‘depression and hypertension’. 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.

28. However, the Tribunal has concerns that the applicant will not comply with the conditions to which the Medical Treatment visa would be subject, namely the ‘no work’ condition and will need to work to fund his stay. The Tribunal has had regard to the applicant’s claims that he is ‘self-funded’, but there is no evidence or explanation provided by the applicant as to the source of these funds and how he has managed to survive for almost 19 years without resorting to work. The Tribunal has also considered this in the context of the applicant claiming to have no ‘relatives, friends or contacts in Australia’.[2] Accordingly, the Tribunal is not satisfied that the applicant would comply with the no work condition.

    [2] Applicant’s Departmental file BCC20202225288 – Visa application form

29. The Tribunal has considered all relevant matters. The applicant first arrived in Australia on 28 August 2000 on a Business (Short Stay) visa (Subclass 456) and has maintained a continuous residence in Australia for approximately 21 years and eight months. The applicant has had a long period of being an unlawful non-citizen since 2 October 2001 until 20 September 2020, totalling approximately 19 years, a significant period of time which the Tribunal places adverse weight on. The Tribunal has serious concerns that the applicant wishes to continue to remain in Australia and that he will continue to do so, even if it means he will become unlawful as he has previously done. This is particularly so given his avenues for remaining in Australia have narrowed, with an unsuccessful application for a [permanent] visa and referral for Ministerial Intervention.

30. The Tribunal has also considered the applicants claims regarding medical treatment in Australia. The applicant has not provided any current or other relevant evidence which indicates that he is undergoing medical treatment and that he intends to stay temporarily in Australia for the purposes of medical treatment. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 signed on 31 August 2020. Approximately one year and eight months have passed since that document was completed and no updates on treatment have been provided. The Tribunal considers the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) indicates that the applicant did not apply for the visa for medical treatment, but did so to maintain an ongoing residency in Australia.

31. Further there is no evidence that the applicant could not seek medical treatment in his home country. There is also no evidence before the Tribunal that the applicant is not able to purchase antidepressants or blood pressure medication in China. As such, the Tribunal is not persuaded that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, medical treatment, but intends to continue an ongoing residence in Australia.

32. The Tribunal has taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa E (Subclass 050) well beyond the time he had requested (1 March 2021), approximately one year and two months, by virtue of the time it has taken to bring this matter to review and despite this additional time, there is no evidentiary material that the applicant has made any efforts to seek medical treatment for his depression or hypertension. Consequently, this raises doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, but intends to continue an ongoing residence in Australia.

33. This is further supported by the applicant’s migration history, which indicates that the applicant arrived in Australia in August 2000 and has remained onshore continuously for approximately 21 years and eight months and has not departed. The applicant has lodged an application for a [Permanent] visa that was refused and unsuccessfully sought administrative review at the Tribunal and thereafter remained unlawfully in Australia until applying for the present Medical Treatment visa. The Tribunal places adverse weight on the applicant’s migration history.

34. There is no information or evidence before the Tribunal regarding the applicant’s personal and economic circumstances that would encourage him to return to his home country at the end of the proposed stay. For example, the applicant’s family composition, his relationship with his family members, the applicant’s job prospects in China or assets. Further, the Tribunal notes the applicant is now 54 years of age having first come to Australia as a 33-year-old. The applicant has spent over two decades in Australia, a significant period of time. The Tribunal considers that the applicant has now spent a good part of his adult years in Australia and that starting over in China will present challenges to the applicant. On the basis of the applicant’s migration history and the information submitted in his visa application, the Tribunal does not have confidence, and is not satisfied, that his personal and/or economic circumstances are conducive to him returning to China.

35. 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.

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

    DECISION

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

    Naomi Schmitz
    Member