Tan (Migration)

[2021] AATA 4104

Tan (Migration) [2021] AATA 4104 (15 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Guek Imm Tan

CASE NUMBER:  2009424

HOME AFFAIRS REFERENCE:               BCC2020/1386061

MEMBER:L. Symons

DATE:15 October 2021

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 15 October 2021 at 12:37pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuinely temporary stay – no evidence of being medically unfit to depart Australia – substantial compliance with visa conditions – medical treatment period has expired – intention to remain in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
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 on 19 May 2020 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 to the Department of Home Affairs (the Department) for the visa on 17 April 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. The delegate refused to grant the applicant the visa because he was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 5 June 2020, the applicant applied to the Tribunal for a review of that decision.   

4. On 27 September 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act and requested that she provide information to the Tribunal in writing by 11 October 2021. The letter indicated that if the Tribunal did not receive the information within the period allowed, or as extended, it may make a decision on the review without taking any further action to obtain the information. The letter also indicated that she would lose any entitlement she may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

5. The Tribunal did not receive any response to its letter dated 27 September 2021. In the circumstances, the Tribunal will proceed to make a decision on the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

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 satisfies the requirements of cl.602.215.

   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 applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 19 May 2020. It indicates that she was in Australia at the time the visa application was filed on 17 April 2000 and has remained in Australia since then. Therefore, the Tribunal finds that she meets the requirements of cl.602.212(6)(a). The evidence before the Tribunal indicates that she was born on 20 December 1976 and accordingly is almost 45 years old. Therefore, the Tribunal finds that she does not meet the requirements of cl.602.212(6)(b). 

10. The Department’s Decision Record indicates that the applicant was an applicant for a [permanent] visa filed on 23 December 2015. This application was refused by the Department on 27 April 2016 and was pending before the Federal Court on appeal at the time of the Department’s decision. There is no evidence before the Tribunal to indicate that the applicant met all the criteria for [that] visa other than the health criteria.

11. Accordingly, the Tribunal is not satisfied 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. Therefore, the Tribunal finds that she does not meet the requirements of cl.602.212(6)(c). 

12. The applicant has not claimed that she is medically unfit to depart Australia or provided the Tribunal with any medical evidence. The Tribunal is accordingly not satisfied that she 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 Tribunal finds that she does not meet the requirements of cl.602.212(6)(d). 

13. Given the above findings, the requirements in cl 602.212(6) are not met and, accordingly, the requirement in cl 602.215 does apply.

14. In the present case, the applicant seeks the visa for the purposes of “ongoing management by Cardiologist for heart failure and ongoing GP review” for the period 18 April 2020 to 15 April 2021. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

15. In considering whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal has had regard to whether she has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by her was subject. There is no evidence before the Tribunal to indicate that she has not complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by her was subject.

16. The Tribunal has considered the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and other relevant matters. She provided the Department with a letter dated 6 February 2020 from Dr Peter Bortz. Dr Bortz indicated that she had a dilated cardiomyopathy that responded well to heart failure treatment. She was on medication for epilepsy. He reviewed her on 6 February 2020 and his assessment was “resolved cardiomyopathy”. His plan was for her to continue taking her medication and be reviewed in 6 months.

17. The applicant applied for the Medical Treatment visa for the purpose of seeking medical treatment during the period 18 April 2020 to 15 April 2021. That period has long expired. She has not provided the Department or the Tribunal with any updated medical evidence. The delegate wrote to her on 11 May 2020 inviting her to comment on adverse information within seven days of receiving the letter and did not receive a response. The Tribunal wrote to her on 27 September 2021 requesting information in writing by 11 October 2021 and did not receive a response. She has failed to engage with the Department and the Tribunal in relation to this visa application.

18. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 19 May 2020. It indicates that she arrived in Australia on 3 October 2015 as the holder of a subclass 601 Visitor visa. On 23 December 2015, she applied for a [permanent] visa. The Department refused this visa application on 19 May 2020. She subsequently sought merits review (before the Tribunal) and judicial review (before the Courts). As at 19 May 2020, she had an appeal pending before the Federal (Circuit) Court. She is the holder of a Bridging visa.

19. The applicant’s application for a [permanent] visa tends to indicate that she wishes to live in Australia on a permanent basis. Her immigration history and the lack of any evidence of her plans to depart Australia raise serious doubts that her intention is only to remain in Australia temporarily for medical treatment or related purposes.

20. Having considered all the evidence, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Therefore, the Tribunal finds that she does not meet the requirements of cl 602.215.

    CONCLUSION

21. 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

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

    L. Symons
    Member