Xue (Migration)

[2024] AATA 1453

Xue (Migration) [2024] AATA 1453 (12 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qing Xue

CASE NUMBER:  2302737

HOME AFFAIRS REFERENCE(S):          BCC2023/429102

MEMBER:Louise Nicholls

DATE:12 April 2024

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 12 April 2024 at 3:15pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – non-appearance before the Tribunal – adequate means of support – evidence of savings not provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 602.216

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is 33 years old and a citizen of the People’s Republic of China (China). The review applicant first arrived in Australia on a Student (TU-571) visa on 12 November 2006.

2. The applicant applied for a Medical Treatment (UB) Subclass 602 visa on 25 January 2023. He provided a Form 1507 “Evidence of Intended Medical Treatment” completed by Zhi Yuan Zhang on 13 January 2023 and a copy of the biodata page of his Chinese passport issued on 31 May 2013.

3. At the time of application, 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).

4. On 9 February 2023, the delegate of the Minister for Home Affairs refused the application for a Medical Treatment (UB) Subclass 602 visa under s.65 of the Migration Act 1958 (Cth) (the Act) on the basis that the delegate found the visa applicant did not meet cl.602.216. The delegate was not satisfied that the applicant had provided sufficient evidence to demonstrate financial capability for his stay.

5. This is an application for review of that decision, and it was made on 27 February 2023. The applicant provided the Tribunal with a copy of the delegate’s decision record.

6. On 19 January 2024 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 12 April 2024.

7. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. No response to the hearing invitation was received.

8. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s. 379A (5) of the Act, the invitation has not been returned to sender and that two separate SMS reminders were also sent to the applicant about the hearing. In these circumstances, and pursuant to s. 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 has, or has access to, adequate means of support for the period of intended stay.

    Does the applicant have access to, or adequate means of support?

11. 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.

12. The applicant provided the delegate with a copy of the biodata page of his Chinese passport which showed a date of birth in 1991. The applicant also stated his date of birth in his application for the visa and this date was consistent with the date of birth set out in his passport. Based on this evidence, the Tribunal finds that the applicant has not turned 50 years of age.

13. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.216 does apply.

14. In the application for the medical treatment visa the applicant stated that his stay in Australia would be self-funded from savings. He estimated that he would be under medical care from 26 January 2023 to 26 January 2024.

15. The applicant’s medical condition requiring treatment is “lower back pain with left hip and leg numbness”. The treatment information in his Form 1507 states that a CT scan or MRI is recommended and acupuncture with an electric device, heat therapy and acupressure.  The medical practice where treatment is to be provided is the Tasly Traditional Chinese Medicine Alliance. The applicant did not provide any estimate of his medical costs. The applicant did not provide any other material to support evidence of how he would fund his proposed stay.

16. The delegate’s decision, which was provided to the Tribunal, noted that the applicant had not provided any evidence to demonstrate savings which would fund his stay in Australia for the requested period noting that if the medical treatment visa was granted a No Work condition (8101) would be imposed and he would not be in a position to seek income from employment.  The applicant has not provided any further evidence or material to the Tribunal which might address this issue.

17. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant has adequate means, or access to adequate means, to support himself during the period of the intended stay in Australia.

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

    Conclusion

19. 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

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

    Louise Nicholls
    Senior Member