Zhang (Migration)

[2022] AATA 1222

Zhang (Migration) [2022] AATA 1222 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuanchao Zhang

CASE NUMBER:  2003505

HOME AFFAIRS REFERENCE(S):          BCC2019/6548667

MEMBER:Mark Bishop

DATE:8 February 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 08 February 2022 at 10:32am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – insufficient evidence to make a finding that the applicant is medically unfit to depart Australia – applicant does not genuinely intend to remain in Australia on a temporary basis –adverse migration history – intention to stay permanently – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 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 6 February 2020 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 December 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.

4. The applicant appeared before the Tribunal on 8 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. 

5. The applicant provided a copy of the decision record to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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.

9. Clause 600.215 is set out immediately below:

   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.

10. Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:

    Unfit to depart

    (6) All of the following requirements are met:

    (a) the applicant is in Australia;

    (b) the applicant has turned 50;

    (c) the applicant has applied for a permanent visa while in Australia;

    (d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

    (e) the applicant has been refused the visa;

    (f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

11. Clause 602.212 (6) (f) provides as follows:

12. “the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth

13. The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

14. Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth”

15. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

16. The applicant was born on 7 July 1987. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

17. In a legal submission provided to the Tribunal the applicant advised he did “…not meet the criteria in clause 602.212(6) therefore is required to meet clause 602.215(1).”

18. Hence the applicant does not meet the criteria set out in cl.602.215 (6).

19. Accordingly the Tribunal turns to cl.602.215.

20. The applicant’s immigration/visa history is outlined immediately below as extracted from the decision record:

    ·On 24 March 2014, the applicant arrived in Australia as the holder of a Student (subclass 573) visa.

    ·On 23 March 2015, the applicant lodged an application for Permanent Protection (subclass 866) visa which was refused on 20 May 2016. On 27 May 2016, the applicant sought a review of the Administration Appeals Tribunal (AAT). This was affirmed on 18 December 2018. On 24 December 2018, the applicant lodged an appeal to the Federal Court which resulted in Minister Win being recorded on 11 April 2019. On 26 April 2019, the applicant lodged an appeal to the Full Federal Court which resulted in Minister Win being recorded on 13 November 2019.

    ·The applicant currently holds a Bridging C (subclass 030) visa;

    ·On 09 December 2019, the applicant lodged an application for a Medical Treatment visa. It is stated that they would like to remain in Australia until 09 December 2020 to seek medical treatment for acute sprain of right metacarpophalangeal joint with severe joint pain. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.

    ·On 17 January 2020, the applicant was requested to provide information regarding their visa history. The applicant was afforded 7 days to provide information. On 22 January 2020, the applicant’s migration agent provided the following statement;

    o“I have genuine intention to apply for medical visa and I will obey the visa condition if it is granted.

    o I understand that I have a complicated immigration history such protection visa application due to strong fears to return to my home country, however I tried my best to obey my visa condition always. My previous application was based on my actual situation and they were all genuine application and I never overstayed my visa and always keep close contact with immigration.

    oWith my current medical visa application. I have provided with supporting documents and I have been really suffering from serious medical condition and I do need treatments in Australia. I have submitted evidence about my injuries and insurance claim and etc. I wish the immigration will consider that I was injured in Australia at work and I am receiving medical treatments ongoing. I always trust Australian doctors and medical system as they always tell me the truth. I hope you can grant me this visa and allow me to take further treatment here. I declare that I will obey my visa condition and support my living.”

21. In evidence to the Tribunal the applicant advised the summary outlined was correct in all respects and he did not point out any mistakes or errors. He did not challenge the findings of the delegate.

22. In his Form 1507 filed with the Department the applicant declared his treatment information as acupuncture for acute sprain, heat therapy and herbal plaster (Topical) to be provided by his treating medical practitioner Zhi yuan Zhang (registration number CMR0001944692) at “Tasly Traditional Chinese Medical Alliance”

23. In evidence to the Tribunal the applicant advised as follows:

    ·He received treatment from a Chinese doctor at Tasly Traditional Chinese Medical Alliance.

    ·During the period of his treatment he received a daily allowance and his medical bills were paid.

    ·He currently resides in Australia as the holder of a Bridging visa. He does not have work rights. He does not have study rights. He has not worked for 2 years. He thinks he last received payments in the third quarter of 2021.

    ·He no longer receives any medical treatment. He does not have any bookings or appointments for medical consultation into the future.

    ·He is fully recovered and no longer needs medical treatment.

    ·He does not recall the last time he submitted a bill for payment for medical expenses but thinks it was in early 2021. Another unidentified person has lodged his claim and provided responses to the Department and Tribunal. His English language ability is limited.

    ·He wishes to cancel the application for a Medical Treatment visa.

24. The Tribunal finds the applicant’s adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis and that he does not genuinely intend to remain in Australia on a temporary basis.

25. The Tribunal finds that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that he does not genuinely intend to remain in Australia on a temporary basis.

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

27. 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

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

    Mark Bishop

    Member