Yang (Migration)

[2021] AATA 342

Yang (Migration) [2021] AATA 342 (1 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Xiuyu Yang

CASE NUMBER:  1836911

DIBP REFERENCE(S):  BCC2018/5544610

MEMBER:Angela Cranston

DATE:1 February 2021

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 1 February 2021 at 11.05am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – visa history, including period as unlawful non-citizen and multiple visa applications – anxiety disorder – limited engagement with health professionals since application made – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 602.215, Schedule 8, condition 8101

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 Immigration on 10 December 2018 to refuse to grant the visa applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant was born in May 1989 and applied for the visa on 5 December 2018. 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. In her application the applicant stated she wished to remain in Australia from December 2018 to December 2020 and that she needed anxiety disorder treatment. She also provided a form 1507 signed by Wilson Wong stating that the applicant had anxiety disorder.

4. The delegate refused to grant the applicant the visa for the following reasons:

   On 9 December 2006 the applicant arrived in Australia as the holder of a student school sector subclass 571 Visa.
   On 17 August 2011 the applicant applied for a permanent protection visa. This visa was refused on 25 November 2011. The applicant has unsuccessfully sought various avenues of review for these refused applications including judicial review at the Federal Court.
   On 3 September 2018 the applicant attempted to lodge an application for permanent protection this was deemed to be invalid on 4 September 2018. The applicant sought a review of the decision at the Federal Court which resulted in a minister win being recorded on 26 November 2018.
   The applicant currently holds a bridging visa.
   During the applicant’s time in Australia, the applicant has been an unlawful noncitizen for two years and one month.
   On 5 December 2018 the applicant lodged an application for a medical treatment Visa. It is stated that the applicant would like to remain Australia until 4 December 2010 (sic) to seek medical treatment for anxiety. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.
   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 that 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 the 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 they have unsuccessfully applied for multiple permanent visas onshore and have taken every opportunity to present their case or circumstances for review. I have further considered that the applicant has previously breached visa conditions and also remained unlawfully in Australia for a considerable period of time and did not contact the department to resolve or regularise their immigration status. I find that their adverse migration history strongly indicates that they intend to continue to seek a visa pathway to remain in Australia on a permanent basis.
   I am not satisfied that you meet the requirements in clause 602.215

5. The applicant applied for review and provided a copy of the Department’s decision to the Tribunal.

6. The applicant appeared before the Tribunal on 22 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant stated the last time she saw a doctor (named Wilson Wong) was in February 2019. She had not gone since because of COVID and the clinic was not always open.

8. The Tribunal put to the applicant that it had to be satisfied that she genuinely intended to stay temporarily in Australia for medical treatment. The Tribunal also put to her it needed to look at whether she had complied with previous visa conditions, whether she would comply with conditions which would include no work and condition 8201 (no study) and any other relevant matter.

9. The Tribunal talked about the departmental decision and asked for comments. The applicant stated her visa applications had failed, she was worried she might be deported and had severe anxiety as a result because she had three children. She stated she had lots of pressure because of covid, her tough life, her children and her husband’s job was not stable. She stated she hoped that she could stay in Australia for treatment. The Tribunal put to her that in her visa application she said she needed treatment from December 2018 to December 2020 and asked why she continued to remain in Australia. She stated because of covid many clinics were closed and she was afraid of going out. She also stated her finances did not allow her to do so, she had three children and had to rely on her husband’s work. She said that the doctor had advised her to think positively and do more exercise and she had also approached the Church. The Tribunal put to her that she had just said she had not been to the doctors since February 2019 and it may be difficult to find that she was remaining in Australia for medical treatment. She stated she had no choice because of her condition, covid 19 and her children. The Tribunal put to her covid had not happened since February 2019. The Tribunal also put to her that given that she had not been to a doctor since February 2019 it was unclear whether she would know whether the clinics were closed or not. She stated the psychologist charges were very high and she was told she needed to see them every 2 to 3 months. She stated her children were studying and the doctor told her she needed to talk to more people and therefore she went to the church to talk to people. She stated later because of covid she was not able to see the doctor and she also had financial difficulties.

10. The Tribunal put her that she had been in Australia since 2006 and given her previous attempts to remain in Australia and the fact that she was not seeking medical treatment the Tribunal may not be satisfied she was intending to temporarily stay in Australia for the purposes of medical treatment. She stated if her husband’s work was stable she would have money to see the doctor. She stated she was afraid of being deported because she had previously lodged a protection visa application and she had three children in Australia. She stated she had great pressure because she feared being deported.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Initial issue

12. The Tribunal exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by telephone. The hearing was held during the Covid -19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

13. While the Tribunal spoke to the applicant by telephone, the Tribunal's observations were that the applicant was given ample opportunity to submit all the evidence that they wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the applicant a fair opportunity before and during the hearing to provide all the evidence and arguments and evidence that she wanted the Tribunal to consider.

    Substantive issue

14. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. Since the applicant has not turned 50, and has not applied for a permanent visa, the applicant does not meet cause 602.212(6) and the issue in this case is does the applicant have a genuine intention to stay temporarily for the visa purpose?

15. 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.

16. The applicant arrived in Australia on 9 December 2006 on a student visa that ceased on 29 December 2010 after which time, she became unlawful until she applied for a succession of visas including her current medical treatment visa which is under review.

17. There is no evidence before the Tribunal that the applicant did not comply with her student visa conditions. 

18. The Tribunal must consider whether the visa applicant intends to comply with the conditions to which the Subclass 602 visa would be subject (cl.602.215(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

19. The Tribunal has also considered the claims and supporting evidence that the applicant provided with her medical treatment application that indicated she wished to remain in Australia from December 2018 to December 2020 because she had anxiety disorder and that according to supporting evidence attached, she would be treated by Wilson Wong. When asked at hearing about the last time she had been to the doctors, the applicant stated that because of Covid and because many clinics were closed and she was afraid of going out and because of her finances, she had last been to the doctors in February 2019. The Tribunal considers that the applicant has had limited engagement with the health profession since she lodged her medical treatment visa on 5 December 2018 and has not and is not seeking ongoing medical treatment.  Given that the applicant failed to go to the doctors more than 12 months before covid became an issue in Australia, the Tribunal also considers that the applicant has invented reasons to paper over her non-attendance at the doctors. Even if the Tribunal accepts that the applicant has limited funds, she has not seen a doctor since February 2019 and is not seeking ongoing medical treatment. Neither does the Tribunal consider her alleged anxiety as a barrier to her seeking medical treatment given that she claims to have been able to approach Church members. Given her past migration history which means she ceased to hold a student visa on 29 December 2010, became unlawful before applying for a succession of visas before applying for this medical treatment visa in December 2018, and given her limited engagement with the health profession, the Tribunal on balance finds that the applicant is not seeking medical treatment but attempting to utilise the medical treatment visa pathway as a means to maintaining ongoing residence.  Given this, neither is the Tribunal satisfied that the applicant will comply with a no work condition. 

20. The Tribunal is not satisfied that the applicant genuinely intends to remain temporarily in Australia to obtain medical treatment.

21. Given the above findings, clause 602.215 is not met.

    DECISION

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

    Angela Cranston
    Member