Sun (Migration)

[2022] AATA 4655

Sun (Migration) [2022] AATA 4655 (24 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qingyang Sun

CASE NUMBER:  2203502

HOME AFFAIRS REFERENCE(S):          BCC2022/194916

MEMBER:Louise Nicholls

DATE:  24 November 2022.

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 24 November 2022 at 1:30pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – substantial compliance with visa conditions – application for a permanent visa – no evidence of undertaking treatment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 57, 65, 362, 379
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. The applicant is a citizen of the People’s Republic of China (China) and is 24 years of age. He first arrived in Australia on 29 September 2019 as the holder of a visitor visa. His visitor visa was due to cease on 29 December 2019, however before it ceased he applied for another class of visa and has held associated bridging visas since that application.

2. The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 8 February 2022. He provided the following documents with the application:

   ·     A copy of the biodata page of his Chinese passport issued on 30 September 2016.

   ·     Form 1507 (Evidence of intended medical treatment) completed by Dr Andrew Huang of Myhealth Medical Centre on 7 February 2022. The medical condition requiring treatment is described as “depression”.

   ·     Bridging Visa Grant Notice dated 22 October 2019.

   ·     National ID Card.

   ·     The applicant’s Commonwealth Bank Statement for the period 1 July 2021 to 31 December 2021.

   ·     Details of Intended Medical Treatment by Dr Andrew Huang of Myhealth Medical Centre dated 7 February 2022.

   ·     Applicant’s response to the Department’s s.57 invitation dated 16 February 2022.

   ·     Tax Invoice from a psychologist dated 15 February 2022.

3. On 21 February 2022 a delegate of the Minister for Home Affairs refused to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act) because the delegate was not satisfied that the applicant met the requirements of cl.602.215 of the Migration Regulations 1994 (the Regulations).

4. This is an application for review of that decision, and it was lodged on 11 March 2022. The applicant provided a copy of the delegate’s decision record with his application.

5. On 1 November 2022 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 22 November 2022. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

6. No response to the hearing invitation was received. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The application for review did not have the applicant’s contact telephone number.

7. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5) and the invitation has not been returned as undeliverable.

8. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 (Cth) (the Regulations).

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

12. 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.

13. The issue in this case is whether the applicant has a genuine intention to stay temporarily for the visa purpose.

    Purpose of the visa.

14. In the present case, the visa applicant seeks the visa for the purposes of medical treatment for depression. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

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

15. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The requirement in cl.602.215 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.

16. The Tribunal notes that the applicant provided a copy of the biodata page of his passport which shows his date of birth as 29 March 1998. Accordingly the Tribunal finds that the applicant has not turned 50 years of age does not meet the requirements of cl.602.216 and cl.602.215 (2) does not apply. The applicant must, therefore, meet the requirements of cl.602.215.

17. The Tribunal notes that there is little evidence to support the claim that the applicant meets the requirements in cl.602.215.

18. With respect to the applicant’s medical treatment needs, the only supporting evidence is contained in the original Form 1507 (Evidence of intended medical treatment) completed by Dr Huang and a short letter from Dr Huang. Dr Huang states that the applicant is being treated for depression with medication and he has referred him to psychologist for 6 sessions and possible review by a psychiatrist.

19. On 10 February 2022 the applicant responded to an invitation by the Departmental delegate asking him to provide further information about his application for the medical treatment visa. The delegate had put to him that he had applied for a permanent visa on 4 October 2019 and when his application had been refused, he sought merits review and the Tribunal, differently constituted, affirmed the visa refusal in December 2021. The delegate put it to him that this information suggested that the applicant was seeking to stay in Australia permanently.

20. [Details deleted].

21. He claimed that he was preparing to return home but developed depressive symptoms which he attributed to the long period of uncertainty following his application for [a permanent visa] until it was finalised. He claimed he attended his GP on 16 January 2022 and saw a psychologist on 15 February 2022. He provided an invoice to support this evidence.

22. The applicant claimed that he has complied substantially with his last held substantive visa, or bridging visa, and that he intends to comply with conditions to which the visa would be subject. There is no other evidence which either supports or undermines these claims.

23. He stated once his depression is cured, he will make plans to return to China.

24. The applicant has not provided any updated information on the course of his treatment, his current treatment needs or his plans to depart Australia. Other than for his own statement of intent made in February 2022, he has not provided any evidence to support his claim that he intends to stay temporarily in Australia. The Tribunal notes that the applicant admitted in writing that he applied for a [permanent visa] in 2019 and pursued that matter when he applied for merits review. He stated he became aware that his application had been unsuccessful early in 2022 just before he applied for the medical treatment visa.

25. In his application for the visa, the applicant estimated that his treatment would be undertaken from 1 March 2022 until 1 September 2022, however that period has now passed. There is no evidence that he needed further time to undertake treatment or that he has departed Australia.

26. Overall and taking all the evidence before the Tribunal into account, the Tribunal is not satisfied that the applicant intends to stay temporarily in Australia for the stated purpose.

    Conclusion

27. Given the above findings, cl 602.215 is not met and the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    decision

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

    Louise Nicholls
    Senior Member