Xiongjie (Migration)

[2021] AATA 4024

Xiongjie (Migration) [2021] AATA 4024 (24 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xue Xiongjie

CASE NUMBER:  1926084

HOME AFFAIRS REFERENCE:               BCC2019/3927211

MEMBER:Rosa Gagliardi

DATE:24 September 2021

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 24 September 2021 at 1:20pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant failed to attend tribunal hearing – an unlawful non-citizen –no medical evidence was provided – non-genuine intention to stay temporarily – lack of compliance in the past –adverse migration history– maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 362

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 30 August 2019 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 8 August 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 he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and therefore did not meet cl.602.215.

The applicant’s engagement with the Tribunal

4.    On 6 September 2021 the Tribunal wrote to the applicant at an address provided by him for the purposes of the review, to invite him to a hearing to have been held on 24 September 2021, 10.00am, EST.  In the invitation the Tribunal highlighted that it had considered all the material before it, but it was not able to make a favourable decision on the basis of this information alone. 

5.    The invitation letter of 6 September 2021, also highlighted that if the applicant was unable to attend the hearing he should advise the Tribunal as soon as possible and that the date of the hearing would only be changed if the Tribunal were satisfied that the applicant had a good reason for being granted an adjournment.  The invitation also advised that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review, without taking any further action to allow or enable him to appear before it.

6.    The Tribunal attempted on 24 September 2021 to contact the applicant to enable him to participate in a phone hearing (given COVID-19) on a phone number provided by the applicant to the Tribunal for the purposes of the review.  The applicant did not respond to the hearing invitation and did not attend the hearing on the scheduled date and time.  Nor did he provide any updated material on the matters he wished to advance in terms of supporting claims that he genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted. 

7.    The Tribunal acknowledges that that the ability to proceed to decision is only a discretionary one, and that thought should be given to the use of such discretion fairly.  The Tribunal considers, however, that it is not for the Tribunal to make his case for him.  The fact that the Tribunal also attempted to send two SMS reminders to the applicant about the impending hearing persuades the Tribunal that all reasonable steps were taken to enable the applicant to appear before the Tribunal. 

8.    Furthermore, the Tribunal cannot consider a request for postponement if no such request, either on medical or other grounds, was ever received.  On this occasion any request for a postponement for good reasons would have been considered favourably.

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

10.The applicant has provided the Tribunal with a copy of the Departmental decision for the purposes of the review.

11.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

13.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.

14.The Departmental records show that the applicant has not turned 50 as he was born on 26 June 1989.  The Tribunal has limited evidence before it that the applicant has also applied for a permanent visa in Australia and has met all the criteria for that visa other than the health criteria but has been refused the visa.  Further, the Tribunal has little evidence before it that would point to the applicant being unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.  Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

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

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 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.

16.On 08 August 2019 the applicant lodged an application for a Medical Treatment visa. The applicant stated that he wanted to remain in Australia until 08 August 2020 to seek medical treatment for depression and anxiety. A Form 1507 was provided in support of the application.  The treatment information indicated, among other things, that the applicant should undertake cognitive behaviour therapy, relaxation, regular exercise (other not legible).

17.In assessing whether the applicant satisfies clause 602.215, the Tribunal has 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, that is, does the applicant have more close family members living in their home country than in Australia.

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

18.On 18 November 2006 the applicant arrived in Australia as the holder of a Student (subclass 571) visa and remained onshore.  His Departmental records demonstrate that during his time in Australia he has been an unlawful non-citizen for approximately 7 months.  Had the applicant attended a hearing the Tribunal would have liked to ask the applicant why he had not made any attempts during this unlawful period to contact the Department to regularise his status.  His migration history indicates that the applicant engaged and disengaged with the Department as it suited him. 

19.At a hearing the Tribunal would have also liked to ask the applicant whether he had worked as an unlawful non-citizen and if not, how it he was able to survive in the community for 7 months without resorting to working.  Other matters the Tribunal would have raised at a hearing is whether the applicant had complied with all his student conditions and whether he had completed the study he had come to Australia to undertake.  Whether he was a genuine temporary entrant as a student, for example, may be relevant to whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

20.The Tribunal has unanswered questions around whether the applicant complied substantially with the conditions to which the last substantive visa, or any bridging visa held by the applicant was subject, and is not satisfied on the basis, among other things, of his unlawful conduct that he was substantially compliant.

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

21.The applicant has been on a Bridging visa for a significant period and it is unclear to the Tribunal what he has used this time in Australia to do, for example, to work and whether he might have been in breach of any other conditions on his substantive and Bridging visas. At a hearing the Tribunal would have explored with the applicant the circumstances which would be conducive to him being able to comply with any Medical Treatment visa granted.  For example, the Tribunal would have liked to know how the applicant intended to survive in Australia in future if he were not permitted to work and what his sources of income might be.

22.With little information before it regarding the applicant’s circumstances, the Tribunal is not satisfied that the applicant intends to comply with the conditions to which the visa would be subject.  His past conduct would indicate that he would not.

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

23.Had the applicant attended a hearing the Tribunal would have liked to explore with him, given the time that has elapsed since his application on 19 August 2019, (a year after the applicant stated he wanted to remain in Australia until – 8 August 2020), what actions he had undertaken to have medical treatment for his conditions of anxiety and depression.  The evidence before the Tribunal regarding any sustained and meaningful effort to engage in cognitive behaviour therapy, for example, is minimal. 

24.The Tribunal has taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa 050 well beyond the time he had requested
(8 August 2020) by virtue of the time it has taken to bring this matter to review.  As such, the Tribunal would have inquired whether there was any reason he now needed further time to undertake medical treatment which is not onerous and could have been undertaken in the past two years. 

25.The Tribunal also has questions as to why the applicant could not undertake treatment in his home country.

26.The limited evidence that the applicant has engaged in treatment since his application and since it was recommended, leads the Tribunal to have serious doubts about whether the applicant is attempting to obtain the visa to remain in Australia for a longer period and to maintain an ongoing residence in Australia. 

27.Further, the Tribunal places significant weight on the applicant’s migration history in Australia which indicates he has engaged in review and litigation comprehensively, even when it would have been evident that his options for remaining in Australia lawfully were narrowing. 

·The applicant arrived in Australia as the holder of a Student visa.

·On 16 November 2009 the applicant lodged a Permanent Protection (subclass 866) visa which was refused on 17 March 2010.

·The applicant sought a review of the decision at the Refugee Review Tribunal (RRT) on 15 April 2010 but the RRT affirmed the refusal decision on
28 February 2011.

.

·The applicant sought judicial review at the Federal Court on 29 March 2011. This resulted in a Minister win being recorded on 08 June 2011.

·On 29 October 2013 the applicant lodged a further Permanent Protection (subclass 866) visa. This visa was refused on 30 May 2014.

·On 3 July 2015 and the applicant sought a review of the decision at the RRT
 but on 13 July 2015 the RRT affirmed the decision.

28.From the applicant’s migration history it would seem that his pursuit of review and litigation has assisted him to maintain an ongoing presence in Australia, rather than accept the findings of the Department and on one occasion the Federal Court, that the applicant was not owed protection by Australia.  Given the limited evidence to demonstrate that the applicant since applying for this Medical Treatment visa has undertaken any treatment for his anxiety and depression, leads the Tribunal to have concerns that the applicant is attempting to obtain the visa to remain in Australia for a longer period and to maintain ongoing residence in Australia.  Little in the applicant’s past conduct would indicate otherwise.

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

29.At a hearing the Tribunal would have been interested to engage with the applicant about his personal circumstances that would encourage him to return to his home country at the end of the proposed stay.  For example, the Tribunal would have asked at hearing about the applicant’s family composition and his bonds with his family members.  The Tribunal would have also inquired about the applicant’s job prospects in his country.  On the basis of the applicant’s migration history, however, the Tribunal does not have confidence, and is not satisfied, that his personal circumstances are conducive to him returning to his home country.

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

30.The Tribunal has little information about the economic situation of the applicant in his home country.  It is safe to assume, however, whatever these might , that they have not motivated the applicant to return to his home country, given he has refused to return there, even after the Federal Court found he had no valid protection claims.

Conditions that might encourage the applicant to remain in Australia

31.The Tribunal has many questions as to why the applicant has sought to remain in Australia for such a lengthy period.  These are matters that the Tribunal could have explored at a hearing.  Whatever the motivation for the applicant remaining in Australia, however, it would appear that the conditions here have encouraged the applicant to continue remaining in Australia.  The Tribunal has concerns, therefore, that these same conditions will continue to motivate the applicant to remain in Australia.

The presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia

32.The Tribunal has little information before it regarding whether the applicant has more close family members living in his home country than in Australia.  Regardless of what the situation may be, however, it would appear that even if his close family members live in the applicant’s home country, they have not been enough of an incentive for him to leave Australia, even when it would have been evident to him that he had few avenues for remaining in Australia lawfully.

Conclusion

33.Having considered the evidence individually and cumulatively, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, for medical treatment.

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

35.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

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

Rosa Gagliardi
Member