Xiao (Migration)

[2022] AATA 4581

Xiao (Migration) [2022] AATA 4581 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chaole Xiao

CASE NUMBER:  2107970

HOME AFFAIRS REFERENCE(S):          BCC2021/1135782

MEMBER:Tania Flood

DATE:15 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 15 November 2022 at 11:38am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – period of unlawful residence – application for permanent visa – no treatment undertaken – 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 8 June 2021 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 25 April 2021. 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 applicant was refused the visa because the delegate was not satisfied that he genuinely intends to remain in Australia temporarily for the purpose for which the visa is granted (cl.602.215).  

4. On 12 October 2022 the Tribunal wrote to the applicant pursuant to the requirements at s.359(2) of the Act and invited him to provide information about any medical treatment he has undertaken or is due to undertake.  He was also invited to provide evidence which indicates that he has a genuine intention to stay temporarily in Australia for the purpose of seeking medical treatment.   The applicant was advised that if he did not respond to the Tribunal’s invitation by 26 October 2022 that he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.  The applicant did not respond to the Tribunal’s letter.

5. In light of the above circumstances, the Tribunal proceeded to make its decision on the available information.

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

   BACKGROUND

7. According to Departmental records the applicant arrived in Australia on 8 August 2008 as the holder of a Student (subclass 572) visa valid for a temporary stay until 10 November 2010.  The applicant has never departed Australia since then.  The applicant overstayed his visa and remained in Australia unlawfully until March 2014 when he made an application for a [permanent] visa.  The application was refused and the applicant unsuccessfully sought a review of the decision.  The applicant remained onshore and lodged the application for a Medical Treatment visa on 25 May 2021.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. The applicant is in Australia and according to the available evidence his date of birth is 15 February 1984.  The applicant is therefore 38 years of age.  Given this, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

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

11. In his application for a medical treatment visa the applicant indicates he is a Chinese citizen seeking medical care in Australia from 25 May 2021 to 24 May 2022.  In an attached Form 1507 he indicates he is seeking treatment for severe depression including psychological counselling. No other medical evidence was included with the application.

12. Despite the Tribunal’s request that he provide further medical evidence to demonstrate that he requires medical treatment and/or continues to or plans to undergo medical treatment he has not done so.  Nor did he provide any further documents relating to his intention to stay temporarily in Australia.

13. The Tribunal notes and has placed weight on the applicant’s migration history outlined above including an unsuccessful attempt to obtain a permanent visa, non-compliance with visa validity in the past and a willingness to remain unlawfully in Australia.  In the Tribunal’s opinion this history is cause for concern and suggests that the applicant may not genuinely intend to stay in Australia temporarily.  The applicant has not put forward any material to counter the implication of the history set out above.

14. The length of time the applicant has been in Australia to date and the efforts he has made to remain permanently in Australia satisfy the Tribunal that he has and continues to have a strong motivation to remain in Australia.

15. The Tribunal has also placed weight on the absence of any information to support that he has or is undergoing or is required to undergo medical treatment for his claimed depression.  Additionally, the Tribunal notes that the applicant requested to stay in Australia for medical treatment until 24 May 2022, a date which has now expired.

16. Having regard to the considerations in cl. 602.215(1) (a) to (c) and the matters set out above, the Tribunal is not satisfied that the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted.

17. Given the above findings, the requirements in cl 602.215 are not met.

18. 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

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

    Tania Flood
    Member