Smith (Migration)

[2023] AATA 1689

Smith (Migration) [2023] AATA 1689 (5 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Miles Peter Rupert Smith

CASE NUMBER:  2213699

HOME AFFAIRS REFERENCE(S):          BCC2022/3534551

MEMBER:Catherine Carney-Orsborn

DATE:5 June 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 05 June 2023 at 10:37am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – mental health treatment – incentives to depart – previous overstay and application made shortly before intended departure date – no further medical reports or evidence provided – not unfit to depart – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215(1)

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 (the Department) on 13 September 2022 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 31 August 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 genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

4. On 14 April 2023 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 31 May 2023. On 24 May 2023 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 intends to stay in Australia for the purpose for which the visa is granted.

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

8. 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.

9. The Tribunal has before it the Department and the Tribunal files.

10. The Department files contains copy of the application for a Medical Treatment visa, copies of the applicant’s bank account balance opened in January 2017, medical certificate dated 29 August 2022, referral letter to treating specialist dated 29 August 2022, 1507 form dated 29 August 2022, copy of the applicant’s foreign passport’s biodata page, Department letter to the applicant dated 1 September 2022, copy of a Bridging E visa grant dated 1 September 2022 and copy of the delegate’s decision.

11. The Tribunal files contains copy of the application for review of refusal, copy of the delegate’s decision, and a response to attend a hearing with the Tribunal.

12. The applicant in his application form stated that the intended to stay in Australia from 31 August 2022 to 30 November 2022. That he intended to seek hospital or medical treatment for anxiety and depression. By way of evidence of intended medical treatment, the applicant accompanied his application with a 1507 form dated 29 August 2022 where his medical practitioner indicated that the applicant required two counselling sessions as treatment. The application for a Medical Treatment visa also included a medical certificate dated 29 August 2022 from Pioneer Health stating that the applicant required medical attention. A referral letter to treat anxiety and depression dated 29 August 2022 was attached stating the applicant needed counselling, had past medical history and was prescribed with Hydrozole cream as medication. No end date to the medical treatment was stated in the medical certificate.

13. The applicant attached to his application for a Medical Treatment visa screenshots of his account with an Australian financial institution showing available funds in the order of $2,500 AUD.

14. On 1 September 2022, the Department wrote to the applicant inviting him to comment and provide evidence regarding his intention to be a genuine temporary entrant, his incentive to depart Australia and his migration history.

15. Departmental records indicated that the applicant’s VET Sector (subclass 500) visa ceased on 13 May 2020. The applicant remained onshore as an unlawful citizen then and was subsequently managed on a series of Bridging E (subclass 050) visas. On 15 August 2022, the applicant was granted a Bridging E (subclass 050) visa on departure ground. The applicant had previously confirmed that he intended to depart Australia by 10 September 2022. However, at 1 September 2022, the applicant still had not departed Australia but had lodged the current application for Medical Treatment visa to extend his stay. The applicant has been in Australia without a substantive visa for over two years.

16. A response period of seven days was afforded to the applicant to provide a response to the Department letter. No response was received by the Department from the applicant.

17. On 1 September 2022, the applicant was issued with a further Bridging E visa.

18. The applicant applied for review of the refusal to grant him a Medical Treatment visa with the Tribunal on 15 September 2022.

19. No further medical reports or evidence were provided.

20. The applicant is in Australia. He has not turned 50. He has not met the criteria for a permanent visa. There is no evidence before the Tribunal that he is medically unfit to depart Australia evidenced in writing by a Medical Officer of the Commonwealth.

21. There is nothing before the Tribunal which indicates that the applicant is gravely ill or in critical care, or, that the treatment sought is not available in his country of origin.

22. The Tribunal has considered the applicant’s previous migration history, outlined above, to remain in Australia.  The Tribunal on the evidence before it is not satisfied that the applicant intends to depart Australia.  There are no compelling or compassionate circumstances before the Tribunal. 

23. On the evidence before it, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl 602.215(1)(a) to (c).

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

    Is the applicant unfit to depart Australia?

25. 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.

26. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

27. The applicant is in Australia. He has not turned 50. He has not met the criteria for a permanent visa. There is no evidence before the Tribunal that he is medically unfit to depart Australia evidenced in writing by a Medical Officer of the Commonwealth.

28. No evidence was provided that he needed further medical treatment.  The treatment as outlined in his application was for two counselling sessions in August 2022 and medication.  No updated medical reports were provided.

29. There was nothing provided which indicated he was suffering from a chronic or critical illness or was unfit to depart Australia.

30. After considering the evidence before it, the Tribunal is not satisfied that the applicant is unfit to depart Australia.

31. Given the above findings, the requirements in cl 602.212(6) are not met.

32. 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

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

    Catherine Carney-Orsborn
    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).