Xu (Migration)

[2022] AATA 5020

Xu (Migration) [2022] AATA 5020 (16 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiaosong Xu

CASE NUMBER:  2109548

HOME AFFAIRS REFERENCE(S):          BCC2021/1388134

MEMBER:Naomi Schmitz

DATE:16 December 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 16 December 2022 at 5:05pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – mental health treatment – adequate means of support – authenticity of two letters of support in almost identical terms – minimal financial and medical evidence provided and limited efforts to obtain treatment – not medically unfit to depart – visa history – credibility – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 602.216

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 12 July 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 9 July 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 delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had adequate means to support himself or access to adequate means to support himself during his period of intended stay in Australia in compliance with cl. 602.216.

4. On 28 July 2021, the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 25 November 2022, the Tribunal invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:

   ·Further information to support your claims that you, the applicant, have adequate means to support yourself or access to adequate means to support yourself during the period of your intended stay in Australia.

6. The invitation requesting information advised that if the applicant did not provide information pursuant to s.359(2) in writing by 9 December 2022, the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments: s.360(3) of the Act.

7. On 29 November 2022, the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 11:00am (NSW time) on 14 December 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

8. On 5 December 2022, the applicant provided to the Tribunal two letters of support including from Mr Jinzhi Zhang dated 27 November 2022 and Dr Kam Fung Cheung dated 28 November 2022.

9. On 6 December 2022, the Tribunal confirmed receipt of the above letters which both stated that the witnesses were prepared to provide financial assistance to the applicant if he were to be granted a Medical Treatment visa. However, the Tribunal explained that neither statement referred to the quantum of funds the witnesses were prepared to offer the applicant, evidence of the funds such as proof of savings or income (eg. bank statement) and over what time these funds would be available to the applicant. The Tribunal requested further information or submissions about these issues including the cost of the applicant's medical treatment and cost of living while seeking medical treatment. The Tribunal requested this information by 13 December 2022.

10. On 7 December 2022, the applicant provided a statement dated 7 December 2022, where the applicant claimed that Mr Zhang was prepared to offer $10,000AUD which could be transferred to the applicant when ‘in need’ and ‘cover approximately half a year’s cost of living and medical treatment’. The applicant enclosed a copy of Mr Zhang’s Westpac Bank account statement from showing a closing balance of $65,894AUD as at 7 December 2022. The applicant stated that Dr Cheung was currently overseas and therefore the applicant was ‘unable to provide the relevant information as requested’, however the applicant claimed that Dr Cheung would be prepared to provide between $5,000AUD to $10,000AUD if required.

11. The applicant appeared before the Tribunal on 14 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Member extended the hearing by approximately 30 minutes to ensure the applicant had an adequate opportunity to present his case. The Tribunal is satisfied that the applicant was accorded with procedural fairness.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 access to, or adequate means of support?

14. Clause 602.216 requires the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia. 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.

15. The above factors must be met cumulatively. The applicant gave evidence that he is currently residing in Australia, in New South Wales (NSW). The applicant has not turned 50, being born in 1983, and is thus 39 years of age. As indicated in the applicant’s visa application, the applicant has applied for [a permanent visa], which was refused.[1] He gave evidence of the same at hearing. There is no information before the Tribunal that the applicant 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. Given the above findings, the requirements in cl 602.212(6) are not met. Accordingly, the requirement in clause 602.216 does apply.

    [1] Departmental File [Number] - Applicant’s visa application 

16. Clause 602.216 requires that following to be met:

    (1) The applicant has:

    (a) adequate means to support himself or herself; or

    (b) access to adequate means to support himself or herself;

    during the period of the applicant’s intended stay in Australia.

    (2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

    VISA APPLICATION

17. The applicant is a citizen of China. The applicant identified that he was in Australia, residing in NSW.  At the time of application, the applicant wrote that the purpose of his stay in Australia was for medical treatment namely ‘psychotherapy for 12 months (3 wekkly (sic) sessions); Mindful & Relaxation Exercises; Drug therapy for anxiety/trauma & depression’. The applicant stated that he did not know the estimated cost ‘the cost will depend on detailed treatment plan’. He claimed that his stay would be self-funded however stated ‘I don't have sufficient funds at the moment due to COVID-19, but I will seek assistance from my friend’. At the hearing the applicant confirmed that the ‘friend’ referred to in his application was Dr Cheung. No financial evidence (such as bank statements, taxation returns, available superannuation funds) or statutory declarations from third parties prepared to provide financial assistance were submitted with the visa application. The applicant indicated that he would be under medical care for approximately 12 months from 1 August 2021 to 31 July 2022.

18. Attached to the visa application was a Form 1507 signed by psychologist Edwin Kleynhans on 8 July 2021. It detailed the medical condition requiring treatment as ‘Dysthymia AND generalised Anxiety Disorder with trauma and Soc Anxiety Features’. The treatment information recorded was ‘Psychotherapy for 12 months (3 weekly sessions); Mindfulness & Relaxation exercises; Drug Therapy (be discussed with GP) for Anxiety/Trauma & Depressed mood’.

19. In the applicant’s visa application, he declared that he was married and had always previously complied with his visa conditions. The applicant declared that he had had a Student visa and [permanent] visa refused.

20. No other medical information was provided with the application or in connection with the Tribunal review.

    EVIDENCE AT HEARING

21. At the hearing, the applicant confirmed that he was seeking the Medical Treatment visa for ‘psychological issues’ including dysthymia and anxiety disorder. The Tribunal Member asked the applicant what medical treatment he had received since making his visa application and what medical treatment he was currently receiving. The applicant stated that he has seen and is currently seeing a Chinese medicine doctor to assist in ‘calming down his mental state’. The Tribunal Member asked what this treatment involved. The applicant claimed that he had his pulse taken, ‘diagnosing’ and was prescribed ‘herbs’ every day.

22. The Tribunal Member asked the applicant why he had not seen a psychologist to date, noting that approximately one year and six months had lapsed since the time of the visa application. The applicant claimed that he had been unable to make an appointment due to the COVID-19 pandemic and was in the process of making an appointment. He also stated that he had seen a GP on a weekly basis for two months. The Tribunal Member asked the applicant what evidence he had in support that COVID-19 had prevented him from seeking medical treatment to date. The applicant replied that he had no evidence to support this claim. The Tribunal Member asked what had stopped the applicant undertaking a psychological consultation via a tele-health similar to the Tribunal’s Microsoft Teams virtual hearing. The applicant did not directly address this question and stated that he had ‘made an inquiry with the clinic’. He then conceded he did not have any evidence to support that he was prevented from undertaking a telehealth conference. The Tribunal Member asked the applicant whether he had a referral from a GP to see a psychologist. The applicant replied in the negative. The applicant confirmed that he did not have any future medical treatment arrangements in place such as a consultation with a psychologist.

23. The Tribunal Member asked the applicant whether he had a prognosis for his condition. The applicant replied in the negative. The Tribunal Member asked the applicant about the duration of his proposed medical treatment. The applicant stated he thought he required one year of treatment but conceded he did not have any medical evidence in support.

24. The Tribunal Member asked the applicant how much his medical treatment would cost. The Tribunal Member explained to the applicant that the Tribunal needed this information, as the Tribunal needed to be satisfied that the applicant’s funds or access to funds was sufficient to cover his medical treatment and living expenses. The applicant replied that he thought it was approximately $10,000AUD. The Tribunal Member asked how he had come to this figure, given he was yet to attend any appointments or have any arrangements in place. The applicant stated it was his own estimate and that he was unable to confirm a definite figure as he had not seen his doctor yet.

25. The Tribunal Member discussed how the applicant was able to source funds for his medical treatment. The applicant confirmed that he had two friends, Dr Cheung and Mr Zhang, who would be prepared to provide him financial support. He also claimed that they were currently paying his medical costs.  

26. The Tribunal Member raised with the applicant that neither Dr Cheung or Mr Zhang’s statements identified how much they were prepared to offer and that this raised concerns that the applicant would not have access to adequate funds to support himself. The Tribunal Member explained that Dr Cheung did not state that he was prepared to provide between $5,000AUD-$10,000AUD, rather the source of this information came from the applicant himself. Furthermore, there was no evidence that Dr Cheung had any available funds. The applicant stated that he was unable to get that information as Dr Cheung was overseas from 3-20 December 2022 but could provide a specific figure upon his return.

27. The Tribunal Member stated that she was not prepared to defer her decision or relist the matter for a second hearing, as the Tribunal had twice written to the applicant specifically requesting this information, including prior to Dr Cheung’s overseas departure. Furthermore, the applicant was put on notice of this issue at the Departmental stage, approximately one year and six months ago when the visa was initially refused. Therefore, in the Tribunal eyes, the applicant has had ample time and opportunity to collate and submit the relevant information to the Tribunal. The Tribunal further notes that Dr Cheung was the ‘friend’ referred to in the applicant’s visa application and therefore the Tribunal would expect that the applicant in the intervening period had conferred with Dr Cheung and obtained such information. The applicant at no stage prior to the hearing requested an adjournment and none was granted. The Tribunal Member also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[2] The Tribunal Member explained that she would proceed to make a decision on the information before the Tribunal, including all information received up until the time of decision. This view did not change at the conclusion of the hearing.

    [2] s.2A of the Administrative Appeals Tribunal Act 1975 (Cth)

28. The Tribunal Member put to the applicant that Mr Zhang’s statement similarly did not state that he was prepared to provide $10,000AUD, but rather that this information came from the applicant himself. The applicant stated that ‘when I prepared the statement I didn’t know the witness letter they had to make the exact amount’ and claimed that if he had known, he would have put the exact figure and he was not a ‘professional person’ such as a lawyer. The Tribunal Member stated that she did not accept the applicant's claims given the Tribunal’s repeated letters to the applicant requesting this information and given the reasons for the visa refusal outlined in the delegate’s decision. The Tribunal Member also noted the applicant’s evidence that he was the author of the letters, rather than the witnesses providing statements independently. The Tribunal Member raised this with the applicant who sought to recant his earlier evidence and claimed he was ‘not capable’ of writing the letters for the witnesses and did not know who had wrote them.

29. Prior to the hearing, the Tribunal Member had noted the strikingly similar wording used in Dr Cheung and Mr Zhang’s witness statements. The Tribunal Member stated that the statements were in almost identical terms, save for the personal particulars and a few words being altered, and stated that this raised serious concerns regarding the authenticity of the statements and that it appeared the applicant had written them. The applicant suggested that the witnesses must have coincidently used a ‘similar format’.

30. At the hearing, the Tribunal Member discussed with the applicant his current living expenses and arrangements. The applicant gave evidence he is currently renting at a share house in NSW where he pays $400 per month in rent. He claimed this included his utility bills. He stated his living expenses were approximately $200 per month. The Tribunal Member stated she had great difficulty accepting these claims, as that would equate to surviving on $50 per week (or approximately $7AUD per day) which seemed implausible given today's cost of living, Australia’s rising inflation, and this amount having to cover a wide range of expenses such as food, general household items and clothing. The Tribunal Member asked him who was financing these expenses. The applicant claimed that his two friends Dr Cheung and Mr Zhang were paying, as the applicant has no work rights or income. The applicant stated that since his visa application, he has divorced from his wife which occurred recently. At the time of application she was the holder of a Student visa, but did not know her current visa status.

    FINDINGS and REASONS

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

32. Since the time of application, the applicant has not provided any updated information or evidence, including medical or financial regarding the nature of his medical treatment, his prognosis, the duration of his medical treatment, and the estimated cost. The applicant estimated that his medical treatment would take approximately one year and cost approximately $10,000AUD but this was not based on any credible or independent medical evidence. He also did not know his prognosis due to not seeing a psychologist. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 signed on 8 July 2021. Over one year and six months have passed since that document was completed and no updates on treatment have been provided by the applicant. The Tribunal further notes that the time that the applicant had requested to stay, namely 31 July 2022, has well passed and despite this additional time no updates have been provided.

33. The Tribunal notes that since the time of application, the applicant has made limited efforts to obtain medical treatment. Of significance, the applicant is yet to obtain a GP referral to a psychologist and attend any psychological consultations. The Tribunal finds this perplexing given the applicant’s claims that he has attended his GP on at least eight occasions and therefore would have had the opportunity to obtain a referral and further information, including the nature of his treatment, duration, and cost. The Tribunal does not accept that the applicant has been prevented from consulting with a psychologist due to the COVID-19 pandemic as it was not supported by any evidence. Similarly, there is no evidence to support that the applicant could not have consulted via tele-health. The Tribunal has also had regard to the applicant’s oral evidence regarding him consulting a Chinese medicine doctor but overall found the applicant’s evidence vague and unsatisfactory. Overall, the nature of the applicant’s medical treatment, the prognosis, duration, and cost are unknown.

34. The Tribunal has had regard to the applicant’s claims that he has the support of his two friends Dr Cheung and Mr Zhang, however, has serious doubts about the financial assistance they are prepared and able to provide. Although the Tribunal accepts that Mr Zhang has $65,000AUD in savings, it is unclear what proportion of these funds he is prepared to offer the applicant, as it was not identified in his statement. Mr Zheng did not give evidence at the hearing and the Tribunal cannot speculate what evidence he would have given. It is also not the Tribunal’s role to present the applicant’s case for him. Similarly, Dr Cheung did not identify the quantum of funds he was prepared to offer. Rather, the sums pro-offered came from the applicant himself, which the Tribunal regards as self-serving. These are details which the Tribunal would expect each witness to identify given the fact in issue in the case (of which the applicant was put on notice at the Departmental stage) and given that they were details specifically requested by the Tribunal, including prior to Dr Cheung’s departure overseas. Even if the Tribunal were to accept the applicant’s evidence that he could receive $10,000AUD from Mr Zhang and $5000AUD-$10,000AUD from Dr Cheung, the Tribunal is of the view that this would be insufficient for the applicant to support himself for a year in Australia, including for medical and non-medical expenses. This is particularly so given the rising cost of living and inflation.[3]

    [3] inflation increased to 6.9% as on 30 November 2022 – accessed on 16 December 2022

1. The Tribunal further notes that Dr Cheung was the ‘friend’ referred to in the applicant’s visa application and therefore the Tribunal would expect that the applicant in the interim period would have conferred with Dr Cheung and obtained financial evidence. In addition, the Tribunal notes that according to the applicant’s own evidence, Dr Cheung and Mr Zhang are currently financially supporting the applicant paying his living and medical expenses and therefore the Tribunal would expect such financial information to be available. Overall, the Tribunal did not find the applicant’s claims that he did not know he was required to provide such information as credible. Similarly, the Tribunal does not accept his explanation that he is not a ‘professional person’ like a lawyer as a reasonable explanation, given the Tribunal’s repeated efforts to assist the applicant by requesting particular information.

2. The Tribunal further has concerns regarding the authenticity of Dr Cheung and Mr Zhang’s statements, and therefore the credibility and reliability of those statements, as the content of both statements were almost identical. These concerns were further heightened by the applicant’s evidence that he was the author of these statements. Although the applicant subsequently claimed that he did not know who wrote the statements and was not capable of writing them, the Tribunal regarded this evidence as self-serving, and only made once he understood how his original evidence undermined his case. The Tribunal also found his explanations implausible when considered with the applicant’s overall evidence. There is no evidence before the Tribunal that the witnesses used the same format (or template) as subsequently asserted by the applicant. Even if the Tribunal were to accept the applicant’s evidence that he did not know who wrote the statements, this would itself cause the Tribunal significant concern, as the Tribunal could not be satisfied that the witnesses wrote the statements, which again, raises concerns regarding the reliability and authenticity of the statements.

3. The Tribunal has also had regard to the applicant’s cost of living expenses which appeared to be a gross underestimate. There is no independent evidence before the Tribunal regarding the applicant’s current living expenses and the source of the applicant’s financial support. The Tribunal further notes that the applicant is now divorced without the support of his wife.

4. Overall, the Tribunal considers the paucity of medical and financial evidence concerning the applicant’s medical treatment and funds to support himself indicates that the applicant does not have adequate means or access to adequate means to support himself. The Tribunal also did not regard the applicant to be a credible or reliable witness.

5. Given the above findings, cl 602.216 is not met.

6. 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

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

   Naomi Schmitz
   Member