ZHOU (Migration)

ZHOU (Migration) [2024] AATA 4335 (22 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Baixiang Zhou
CASE NUMBER:  2305555
HOME AFFAIRS REFERENCE:               BCC2023/1126658
MEMBER:Moira Brophy
DATE:22 May 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 22 May 2024 at 2:43pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – consent to decision without hearing – previous visa refusals and reviews and significant periods as unlawful non-citizen – no information about treatment provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(2)(e), (f), 602.215(1), (6)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 April 2023 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 February 2023. 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).
The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant was not seeking the medical treatment visa as a pathway to maintain ongoing residence in Australia and therefore found he was not able to satisfy cl 602.215.
The applicant was invited to attend a hearing on 16 May 2024 to give evidence and present arguments. The Tribunal received an email from the applicant on 14 May 2024 requesting the Tribunal determine the application ‘on the papers.’
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
BACKGROUND
The visa applicant is a 32-year-old male born in China. He arrived in Australia on a Subclass 571 visa on 20 July 2008. The Subclass 571 visa allowed him to stay in Australia to study a full-time course. He has remained in Australia since.
In supporting his application for a Medical Treatment visa, the applicant provided a form 1507 in which Dr Aldren K. S. Tai, declared his condition requiring treatment as ‘Palpitations and chest discomfort, high blood pressure’ and his treatment to be ‘referred to cardiologist, monitor BP regularly, reduce salt intake and encourage regular exercise.’
On 24 April 2024, 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 to the Regulations including cls 602.215(1)(a)–(b).
The particulars of the information in the letter of 24 April 2024 were:
Departmental records show the following immigration history:
·     The applicant arrived in Australia on 20 July 2008 and has not departed since this time.
·     On 01 May 2014 the applicant applied for a Student (Subclass 572) Visa, and this was refused on 05 May 2014. The applicant unsuccessfully sought review of the Department's decision which the AAT affirmed on 03 November 2014.
·     On 11 December 2015 the applicant demonstrated his intention to remain in Australia permanently by applying for a permanent Partner Visa. The application was refused on 22 September 2016. The applicant sought review of the Department's decision, and this was affirmed on 04 October 2017.
·     On 04 October 2017 the applicant applied for a Medical Treatment (Subclass 602) Visa. The application was refused, and the applicant again sought review with the AAT who affirmed the decision on 12 June 2019.
·     On 11 July 2019 the applicant made a further application for a Medical Treatment (Subclass 602) Visa which was also refused and following a review, the AAT affirmed the decision on 06 October 2021.
·     On 08 November 2021 the applicant made a third application for a Medical Treatment (Subclass 602) Visa. The application was refused, and the applicant sought review with the AAT.
·     The applicant has not held a substantive in Australia since 15 March 2011 and has previously spent significant periods of time in Australia as an unlawful non-citizen.
· On 17 November 2021, 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(6) 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. The delegate found that 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.
·     On 21 April 2023, the applicant applied to the AAT for review of that decision.
The information outlined above concerning the applicant’s immigration history is 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 therefore does not meet cl 602.215 in Part 602 of Schedule 2 of the Migration Regulations 1994 (Cth) including cl 602.215(1)(a)-(b). If we rely on this information in making our decision, we may affirm the decision under review as you may not satisfy cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth).
In that same letter the Tribunal advised the applicant that it would consider in this review the criterion on which the delegate refused the application: cl 602.215 (that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted). The Tribunal also advised it would consider whether the applicant meets cl 602.212, given the passage of time since the application was made and the review was lodged.
The applicant was invited to provide details of current medical treatment he was receiving which may include medical evidence to support the visa application. The Tribunal noted that in the application the visa was sought on the basis the applicant was seeking treatment for palpitations, chest discomfort and raised blood pressure. He stated he wished to remain in Australia for treatment and that all costs associated with treatment would be self-funded. The applicant was advised that cls 602.212(2)(e) and (f) require the Tribunal to be satisfied there are arrangements in place for the payment of all costs related to the treatment and for all other expenses for a stay in Australia, and that payment of these costs will not be a charge to the Commonwealth, or a relevant government authority has approved payment for the costs.
The applicant was invited to provide the following information in writing:
·Evidence of what arrangements are in place for the payment of costs related to the medical treatment and living costs for the associated stay in Australia.
The applicant was given time to respond to the matters raised.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Are the medical treatment requirements met?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cls 602.212(2)–(8). These relate to the basis on which the stay in Australia is required. Relevantly to this matter, cl 602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:
·the arrangements for treatment have been concluded;
·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia;
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community;
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded; and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The applicant did not respond to the Tribunal’s letter seeking information as to what arrangements the applicant had made for medical treatment. Accordingly, the Tribunal was not satisfied there were arrangements in place for ongoing treatment or that arrangements had been made for the payment of any treatment.
The Tribunal is satisfied the applicant is in Australia and was born on [Date]. There is no evidence the applicant is medically unfit to depart Australia.
Given the above findings, the requirements in cl 602.212(2) are not met.
For completeness, the Tribunal considered whether the applicant meets cl 602.215.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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.
Given the findings made above the Tribunal is satisfied the applicant is in Australia and was born on [Date]. There is no evidence the applicant is medically unfit to depart Australia.
Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.
In a letter dated 24 April 2024 the Tribunal raised as an issue with the applicant its concerns that his immigration history, including the fact that he had lived in Australia for periods of time without a substantive visa, tended to indicate that he applied for the Medical Treatment visa to extend his stay in Australia, and not because he intended to seek medical treatment in Australia.
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.
The applicant has not provided the Tribunal with any medical evidence to indicate that he has been receiving treatment on an ongoing basis or that he requires ongoing medical treatment in the future. He has not provided any medical evidence that a long flight would be injurious to his health.
Accordingly, after taking into account the evidence on file, including his past immigration history, the Tribunal finds it cannot be satisfied that the applicant meets the requirements for the visa as there is no information or evidence to suggest that the applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
Accordingly, after considering the evidence on file, the Tribunal finds it is not satisfied that the applicant meets the requirements for the visa. The Tribunal has considered the medical evidence and 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.
Given the above findings, cl 602.215(1) is not met.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Moira Brophy
Member

ATTACHMENT
MIGRATION REGULATIONS 1994
SCHEDULE 2
602.212 (1)    The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2)All of the following requirements are met:
(a)    the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b)    arrangements have been concluded to carry out the treatment;
(c)     if the treatment is an organ transplant:
(i)the donor of the relevant organ is accompanying the applicant to Australia; or
(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f)     either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3)All of the following requirements are met:
(a)    the applicant seeks to donate an organ for transplant in Australia;
(b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c)     the applicant satisfies public interest criterion 4005;
(d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(e)     either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Support person
(4)All of the following requirements are met:
(a)    the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i)the requirements described in subclause (2) or (3) are met; or
(ii)the requirements described in subclause 675.212(2) or (3) are met; or
(iii)the requirements described in subclause 685.212(2) or (3) are met;
(b)    the person to whom the applicant is to provide support holds:
(i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c)     the applicant satisfies public interest criterion 4005.
Western Province of Papua New Guinea
(5)All of the following requirements are met:
(a)    the applicant is a citizen of Papua New Guinea;
(b)    the applicant resides in the Western Province of Papua New Guinea;
(c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
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.
Financial hardship
(7)All of the following requirements are met:
(a)    one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant holds:
(i)a Subclass 602 visa; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;
(e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;
(g)     the applicant has compelling personal reasons to work in Australia;
(h)    the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8)All of the following requirements are met:
(a)    one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant has compelling personal reasons for the grant of the visa;
(d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).

[2024] AATA 4335

22 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice