Then (Migration)

[2022] AATA 1043

Then (Migration) [2022] AATA 1043 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fit Fung Then

CASE NUMBER:  2002155

HOME AFFAIRS REFERENCE(S):          BCC2019/6578380

MEMBER:Mark Bishop

DATE:14 January 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 14 January 2022 at 12:09pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – lack of compliance in the past –adverse migration history – lengthy periods of unlawful overstay – maintain ongoing residence in Australia – applicant currently is not undergoing any medical treatment at all – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

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 22 January 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 for the visa on 10 December 2019. 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 applicant failed to satisfy the criteria set out in the relevant Migration Regulations.

4. The applicant appeared before the Tribunal on 14 January  2022 and to give evidence and present arguments.

5. The applicant provided a copy of the decision record to the Tribunal.

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 genuinely intends to stay temporarily 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. Clause 600.215 is set out immediately below:

   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 ther 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.

   Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:

   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.

10. Clause 602.212 (6) (f) provides as follows:

    “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

11. The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

12. Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”

13. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

14. Accordingly the Tribunal turns to cl.602.215.

15. The delegate summarised the applicant’s visa/immigration history as follows:

    ·“Departmental Records demonstrates that:

    o   On 20 August 1995, you arrived in Australia as the holder of a Visitor (subclass 676) visa;

    o   On 23 October 1995, you lodged your first Permanent Protection (subclass 866) visa which was refused on 16 January 1996. You unsuccessfully sought various avenues of appeal including Refugee Review Tribunal (RRT) and multiple requests for Ministerial Intervention;

    o   On 28 August 2013, you lodged your second Permanent Protection (subclass 866) visa which was refused on 28 April 2014. You unsuccessfully sought various avenues of appeal including RRT, Judicial Review and multiple requests for Ministerial Intervention;

    o   On 14 September 2017, you lodged a third application for a Permanent Protection (subclass 866) which was deemed invalid on 08 November 2017. You unsuccessfully sought Judicial Review regarding the invalid application. On 04 April 2019, you lodged a Medical Treatment (subclass 602) visa which was deemed invalid on the same day. You are currently seeking Judicial Review regarding the invalid application;

    o   You currently hold a Bridging (subclass 050) visa

    o   During your time in Australia, you have been an unlawful non-citizen for approximately six years.”

16. The delegate made the following findings:

    ·“A response period of seven days was afforded to the applicant to provide a response to the Natural Justice letter regarding their Migration History.

    ·The applicant provided a response on 17 January 2020. In the submission, the applicant states that she has been in Australia since June 1995 and that she has lodged applications to remain in Australia.

    ·The reason for lodging a Medical Treatment visa is that she is seeking treatment to deal with anxiety and depression, stating that her mental health is “very low”.

    ·The applicant further advises that she is no longer in a relationship with her previous partner and requires support from medical and mental health specialists.

    ·I have considered the applicant’s claims in relation to her migration history and weighed this against the stated reasons for seeking medical treatment in Australia. I find that the applicant’s migration history demonstrates that she has not complied with the conditions applied to previous visas she has held whilst present in Australia.

    ·The applicant states that she arrived in Australia as a temporary visa holder in 1995, has lodged several visa applications to remain onshore and has not departed since. This information does not show an intention to comply with the conditions that would apply to a Medical Treatment visa.

    ·On balance, I find that the applicant’s migration history outweighs her reason to remain in Australia to seek medical treatment.

    ·The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state they must remain in Australia for ongoing consultation. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.

    ·In their Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future. Departmental records confirm that the applicant has unsuccessfully applied for a permanent visa onshore and have taken every opportunity to present their case or circumstances for review. I find that their adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on a permanent basis.

    ·I have considered the claims and supporting evidence that the applicant has provided with their application. I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

    ·I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.”

17. In her Application for a Medical Treatment Visa dated 10 December 2019 the applicant declared she sought medical treatment for “anxiety and depression”. The Form 1507 provided to the Department outlined a medical condition of anxiety and depression with treatment of CBT counselling.

18. The applicant advised the Tribunal she did not challenge the findings of the delegate. In evidence the applicant advised the findings of the delegate concerning her immigration history were correct.

19. In evidence to the Tribunal the applicant advised as follows:

    ·She has resided  in Australia since 1995 on a continuing basis with significant periods of unlawful overstay amounting to 6 years.

    ·She was married for 30 years abut is now divorced from her husband. She does not have any family or dependants in Australia and her parents have passed. She does not own any assets in Australia. She did not return to Indonesia when her parents passed.

    ·In 2019 she sought a medical treatment visa for anxiety and depression. She has not received any medical treatment since that time although she has seen a person for  acupuncture treatment She is not currently receiving any medical treatment for anxiety and depression. She does not have any appointment to see a medical person for treatment for anxiety and depression in the future.

    ·She is unemployed and does not have the capacity to pay for any medical treatment. She does not have a work permit and does not work.

20. In assessing whether the applicant satisfies clause 602.215, the Tribunal considered the following:

    ·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject

    ·whether the applicant intends to comply with the conditions to which the visa would be subject

    ·whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia

    ·the personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay

    ·the personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption) conditions that might encourage the applicant to remain in Australia

    ·the presence of immediate family members in their home country

21. The Tribunal notes the applicant has little incentive to remain in Australia. She has no family, is unable to work, does not have employment, advised she did not have family or dependants in Australia and is reliant on the good will of friends to survive. Notwithstanding these difficult circumstances the applicant did not advise of any immediate intent to return home although she did mention she would like to return home if the Tribunal would give her some more time in Australia. The applicant has an extensive  immigration history in Australia with lengthy periods of unlawful overstay in breach of relevant visa conditions at that time. In her Medical Treatment visa application, the applicant did not provide sufficient documentation to demonstrate her intention or incentive to depart Australia then or in the near future. Departmental records confirm that the applicant has unsuccessfully applied for a permanent visa onshore and has taken every opportunity to present her case or circumstances for review. The Tribunal finds that the applicant’s adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on a permanent basis.

22. The Tribunal notes the evidence of the applicant that she has not been receiving medical treatment for her condition of anxiety and depression for a lengthy period of time. The Tribunal is unable to find the applicant ever continued any medical treatment consistent with the advice provided to the Department post initial diagnosis and treatment.

23. The Tribunal finds the applicant is not engaged any form of medical treatment under the guidance or supervision of a recognised medical professional for her condition of anxiety and depression. The Tribunal finds the applicant currently is not undergoing any medical treatment at all.

24. The Tribunal finds the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

25. The Tribunal is of the view the applicant does not genuinely intend to stay temporarily in Australia. 

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

    Concluding paragraphs

27. 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

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

    Mark Bishop

    Member