Su (Migration)

[2018] AATA 864

Su (Migration) [2018] AATA 864 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baojun Su

CASE NUMBER:  1719899

DIBP REFERENCE(S):  BCC2017/2749947

MEMBER:Meena Sripathy

DATE:28 March 2018

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 28 March 2018 at 2:59pm

CATCHWORDS
Migration –  Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) –  Ongoing medical treatment or appointments – Tribunal application used to delay departure from Australia – Applicants acknowledge that they not meet requirements

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 Schedule 2 cls 602.212, 602.213, 600.215 Schedule 3

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 Immigration on 11 August 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 August 2017. 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 (the Regulations).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicants genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. 

4. The applicant appeared before the Tribunal on 5 March 2018 to give evidence and present arguments. This hearing was combined with that of his partner Ms Xiuzhen Huang, who has a separate review application before the same Tribunal (AAT ref. 1719900).  The Tribunal also received oral evidence from the applicants daughter Yansha Su.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal notes that the Department was unable to provide its file, including the application form and documents lodged by the applicant.  Following the hearing the applicant’s representative provided to the Tribunal a copy of these documents.

7. In the decision record, provided by the applicant with the review application, the delegate referred to the applicant’s migration history, having arrived originally on 17 April 2005, departed twice since then for two short periods from 29 September to 13 October 2007  and from 31 January to 15 February 2009 and have not departed again since then, spending 4356 days onshore and only 27 offshore since the first arrival.  The present application was made on the basis of seeking general health consultations, following multiple failed applications and attempts onshore to obtain a permanent residence visa, the most recent unsuccessful Ministerial intervention outcome on 10 May 2017. Reference is made to a Form 1507 signed by Dr Ben Lau of Fairfield Medical Centre and patient health summary provided with the application, indicating a mild condition the applicant has which requires no long term medications and no active treatment is prescribed.  The delegate’s letter indicates the applicant’s migration agent’s letter confirms that the applicant is aware they do not meet requirements for the grant of a Medical Treatment visa and it is lodged for the purposes of delaying or avoiding their departure from Australia and to facilitate access to a request for Ministerial intervention.

8. At the hearing the applicant’s migration agent explained that her concession that both of the  applicants do not meet the criteria for grant of the visa was on the understanding that they cannot meet Schedule 3 criteria as the application was made more than 28 days after the last substantive visa they held.  The Tribunal pointed out to the applicant that the regulations were amended effective 1 July 2017 and clause 602.213 that she is referring to no longer applies.  She appeared to be surprised by this and undertook to make further submissions.

9. The Tribunal proceed to take evidence from the applicant. He confirmed his migration history as set out in the Department’s decision record.  He told the Tribunal he lives with his wife and two children.  He and his wife work on a farm. His elder daughter was offshore for a period of 5 months and has recently returned to Australia as the holder of a Subclass 189 skilled independent visa.  His son has Australian citizenship, upon turning 10 years old in 2016. 

10. He confirmed that he has made previous applications for a permanent visa, initially one under the employer nomination scheme, and later he made protection visa applications.  He confirmed that he sought various reviews and the last activity was a Ministerial intervention request which was declined in May 2017.  

11. The Tribunal asked the applicant why he applied for the present visa on 1 August 2017.  He said at that time he needed a general physical check up because he had not had one for a long time.  He visited the family doctor at Fairfield Medical Centre, Dr Ben Lau.  He has not seen him again after that.  He is not receiving any ongoing treatment. He just advised him to pay attention to his body and take care at work.  The applicant confirmed he has no ongoing medical treatment or appointments. 

12. The Tribunal asked the applicant what his plan was.  It explained the issue of the genuine intention to stay temporarily requirement and that it does not appear to be met in this case, as his migration history and current circumstances appears to indicate he has no intention or desire to leave, and invited his response to this.  He said he has no plan to return to depart Australia or return to China.  He would like to stay in Australia because his children need him.

13. The Tribunal allowed the representative a period until 16 March 2018 to provide further submissions and evidence in light of the matters discussed at the hearing. 

14. Following the hearing the Tribunal received the following information from the applicant’s representative:

    a.Advice Acknowledgement and Confirmation of Instructions dated 1 August 2017 signed by the applicant indicating his knowledge that the application for the Medical treatment Visa is unfounded or unlikely to succeed.

    b.Copy of the application for the Medical treatment Visa submitted by the applicant and supporting documents including Form 1507 and Patient Health Summary from Dr Ben Lau dated 29 July 2017

    c.Letter dated 6 March 2018 from Dr Ben Lau indicating applicant’s medical history and current treatment being diet and exercise.

    d.A submission from the representative arguing that the applicant meets cl.602.212(6)  and 602.215 due to his current hardship with his family.

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

    Are the medical treatment requirements met?

16. 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(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:

    ·the arrangements for treatment have been concluded

    ·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia

    ·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community

    ·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and

    ·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.

17. On the basis of the material and evidence before it, the Tribunal is not satisfied that the applicant is seeking any treatment at this time and therefore the requirements in cl.602.212(2) are not met.

    Is the applicant unfit to depart Australia?

18. 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.

19. The applicant’s representative argues in her submission of 5 March 2018 that the applicant meets cl. 602.212(6).  The Tribunal does not agree.  It accepts that he is in Australia and has turned 50 years old.  It does not accept that he has applied for a permanent visa and has met all the criteria for that visa other than the health criteria and has been refused the visa on the basis of health criteria, or that he 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.  Therefore the requirements of cl.602.212(6) are not met.

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

21. The Tribunal notes that given the above findings it is not strictly necessary to address clause 602.215, but for the sake of completion, given that it was the basis for the delegate’s decision, it will also address this issue. 

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

22. 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).  As indicated above clause 602.212(6) does not apply in this case.

23. The Tribunal has considered the applicant’s migration history, his family circumstances and his oral evidence to the Tribunal.  It finds that he has been in Australia continuously since February 2009, two of his three children have permanent residency here now and on his own evidence he would like to remain here to be with his children and has no desire to return to China.  

24. Given the above findings, the Tribunal is unable to be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that cl.602.215 is not met.

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

26. 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

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

    Meena Sripathy
    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).