Zhang (Migration)

[2021] AATA 5525

Zhang (Migration) [2021] AATA 5525 (25 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Long Zhang

CASE NUMBER:  2005139

HOME AFFAIRS REFERENCE(S):          BCC2020/404386

MEMBER:Moira Brophy

DATE:25 November 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 25 November 2021 at 4:48pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – substantial compliance with visa conditions – immigration history – lengthy period of unlawful residence – debt to the Commonwealth – partner awaiting residence application – balance of family Australian residents – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.217; Schedule 4, Public Interest Criterion 4004

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 27 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 12 February 2020. 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 the applicant genuinely intended to remain in Australia for the purposes of medical treatment and not for the purpose of residing permanently in Australia.

4. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. 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 either telephone or video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 23 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   Background

7. The applicant is a citizen of China and is currently 31 years old. At the time of the application, he was living in Perth, Australia.

8. To satisfy the requirements for the grant of a medical treatment visa, the applicant is required to demonstrate that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The applicant submitted Evidence of intended medical treatment form 1507 completed by Dr Kool Ang requiring treatment for medical condition: Back pain and wrist pain, and the treatment being rehab/physiotherapy/chiropractor, cortisone injections. The period requested for the treatment was 12 February 2020 to 12 February 2021.

9. On 6 October 2021 the Tribunal wrote to the applicant setting out his immigration history and advising the information outlined concerning his immigration history was relevant to the review currently before the Tribunal as it may lead the Tribunal to find that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of undertaking medical treatment and that he therefore does not meet cl. 602.215 in Part 602 of Schedule 2 of the Migration Regulations 1994 (Cth) including Clause 602.215(1)(a)- (b).

10. The particulars of the information in the letter of 6 October 2021 were:

    ·On 8 February 2006 the applicant arrived in Australia on a Schools Sector (subclass 571) visa.

    ·On 15 March 2008 his Schools Sector (subclass 571) visa expired.

    ·On 8 May 2015 he lodged an application for a [Permanent] visa that was refused on 23 October 2015. The applicant sought review of the decision at the AAT. On 9 June 2016 the AAT affirmed the decision to refuse [that] Permanent visa. The applicant sought review of the decision at the Full Federal Court, resulting in a Minister Win being recorded [in] August 2018.

    ·On 10 September 2018 the applicant lodged a Medical Treatment (subclass 602) visa that was refused on 28 August 2018. On 17 October 2018 he sought review of the decision at the AAT. On 19 December 2019 the AAT affirmed the decision to refuse a Medical Treatment (subclass 602) visa on the basis that the applicant did not meet the criteria in cl.602.215 215 in Schedule 2 of the Migration Regulations 1994 (Cth), specifically that he did not genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted. On 8 January 2020 the applicant applied to the Federal Court for review of the decision. On 11 February 2020 the application was withdrawn.

    ·On 12 February 2020 the applicant lodged an application for a Medical Treatment (subclass 602) visa stating that he would like to remain in Australia until 12 February 2021 to seek medical treatment for back pain and wrist pain. On 27 February 2020 the application for a Medical Treatment (subclass 602) visa was refused by a delegate of the Department of Home Affairs on the basis that the applicant did not meet the criteria in cl. 602.215 in Schedule 2 of the Migration Regulations1994 (Cth), specifically that he did not genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted. On 15 March 2020, the applicant applied to the present Tribunal for a review that of that decision.

    ·The applicant last arrived in Australia on 30 December 2006 and has not departed Australia since that date. During his time in Australia, he has been an unlawful non-citizen for a total of 8 years and 125 days.

11. The applicant was given time to respond to the matters raised and a response was received on 20 October 2021.

12. On 21 October 2021 the Tribunal again wrote to the applicant and advised information from the Department of Home Affairs shows that the applicant had a debt of $1,673.00 to the Commonwealth and that this would be a reason, or part of the reason for affirming the decision under review as the criteria in cl. 602.217(1) requires an applicant to meet Public Interest Criteria 4004. This requires that the applicant does not have any outstanding debts to the Commonwealth unless the Minister is satisfied appropriate arrangements have been made. This may lead the Tribunal may conclude the applicant does not meet the criteria in cl. 602.217(1) and affirm the decision under review.

13. On 8 November 2021 the applicant requested details of the amount owed.

14. At the time of hearing the Tribunal was satisfied the monies outstanding had been paid.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 provided sufficient information for the Tribunal to be satisfied he meets the criteria for the visa and whether the Tribunal is satisfied the applicant genuinely is intending to stay in Australia only for the purposes of treatment.

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

16. 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).

17. The application form (Form 48ME) contains a series of questions which asks the applicant how long he seeks to remain in Australia (Q15), for what period will he be under medical care (Q17), to describe the medical treatment he has arranged (Q18), and to give details of his doctor/hospital in his home country and in Australia (Q19 and Q20) and the funding for his stay (Q26).

18. At the time of application, the applicant stated he wished to remain in Australia for the period from 12 February 2020 to 12 February 2021 to obtain medical treatment from Dr Kool Ang. The original form 1507 submitted with the application and completed by the treating doctor Dr Kool Ang was dated 15 January 2020. Dr Ang opined the applicant had ‘backpain and wrist pain’ and that this condition would require ongoing medication and treatment. In his application the applicant stated he wished to remain in Australia for 12 months for medical treatment in order to receive ongoing treatment for his medical health condition as described by his doctor.

19. While he had been living with a flatmate in Perth at the time of application, at the time of hearing he told the Tribunal he was still residing in Perth, but he was now living with his defacto partner who was a national of Korea and their twin daughters. He has been in this relationship for around two years and their daughters had been born on 26 February 2021. The applicant said his partner was currently on maternity leave and she was waiting on a decision as to whether she would be granted a sponsorship visa to allow her to remain in Australia. He was currently working but not in a full-time capacity because of his back problems. He said he generally worked around 20 to 30 hours each week. He was working fixing ceilings and doing cleaning jobs. He had been granted work rights about twelve months ago.

20. The applicant said that he had last seen the doctor about his back problems ‘a few months ago’. He said he had never had a cortisone injection. He had been told his problem is muscular and he needs massage and pain patches. He said he goes to a massage parlour about once a month. He said sometimes go to a physio. He does not go to the same place every time. When asked where the massage parlour he went to was, he said he attends ones in shopping centres. He said the masseurs were generally from either China or the Philippines.

21. When put to the applicant that he had been here for the extended time period he had initially sought, he agreed, and when asked whether there was any treatment plan in place for beyond that time, he said the doctor had told him he did not need to see a doctor he just needed to have massages and use pain patches. When asked he said he obtained the pain patches from the grocery store. They contained herbs and analgesia. The applicant told the Tribunal that since the birth of his daughters he was no longer able to afford ongoing treatment for his back problems as he did not qualify for any government assistance.

22. The Tribunal raised as an issue with the applicant its concerns that his immigration history, including the fact that he had lived in Australia since March 2008 without a substantive visa, and his history tended to indicate that he applied for the medical treatment visa to extend his stay in Australia and not because he intended seeking medical treatment in Australia.

23. 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. In assessing intention, the Tribunal has taken into account the fact the applicant has failed to comply with his visa conditions in the past but has adhered to the conditions on his present bridging visa. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl.602.212(6). There was no evidence the applicant was medically unfit to leave Australia.

24. The applicant agreed his visa history was a problem for him and he apologized for the poor decisions he had made in the past. He said he was not able to leave Australia at the present time because of COVID. He was not able to take his baby daughters on a long flight where they might be exposed to people who had the virus. That was a real concern for him. He said he wanted to stay in the short term because of COVID and the medical treatment was better, but he wanted his stay here to be lawful. The Tribunal considered this submission but in light of his immigration history was not persuaded his intention was to stay in Australia on a short-term basis. It was put to him that a medical treatment visa was a short-term visa for a specific purpose and given his history of seeking to remain in Australia on a more permanent basis, that may not be an appropriate visa for him.

25. In considering the issue of the applicant’s intention the Tribunal was mindful that the applicant’s partner and two daughters were all in Australia albeit on bridging visas. His parents are also permanent residents of Australia. At the time of hearing the applicant told the Tribunal his parents were currently in China as they had been visiting there and had been prevented from returning to Australia because of COVID but their intention was to return as soon as they were able. His sister and her family are also resident in Australia.

26. Accordingly, after taking into account the evidence on file and the evidence given at the time of hearing, the Tribunal finds it is not satisfied that the applicant meets the requirements for the visa. The Tribunal has considered the medical evidence and the oral testimony of the applicant given at the time of hearing but on the evidence considered in its totality the Tribunal is not persuaded that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

27. Given the above findings, cl.602.215(1) is not met.

    DECISION

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

    Moira Brophy
    Member