1801858 (Migration)

[2019] AATA 1702

1801858 (Migration) [2019] AATA 1702 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801858

MEMBER:Linda Holub

DATE:23 May 2019

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 23 May 2019 at 3:47pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine intention to stay temporarily – medically unfit to depart Australia – credibility issues – use of visa to maintain ongoing residence – multiple visa applications – history of non-compliance – unlawful status – can access services in Lebanon for mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359AA, 417
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

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 Immigration on 11 January 2018 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 December 2017. 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 (the Regulations).

3. The delegate refused to grant the applicant the visa because the delegate found that the applicant is attempting to obtain a Medical Treatment visa to remain in Australia to maintain ongoing residence in Australia, to continue working in Australia, and to access services in Australia.

4. The applicant appeared before the Tribunal on 8 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his wife.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

Is the applicant unfit to depart Australia?

1. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl.602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl.602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.

2. The records of the Department indicate that the applicant was in Australia at the time of application on 8 December 2017 and he confirmed this at hearing.  Accordingly, the Tribunal finds that he satisfies the requirements of cl.602.212(6)(a).  The evidence before the Tribunal indicates that he was born [on specified date] and therefore he has not turned 50 years of age.  The applicant confirmed his date of birth.  Accordingly, the Tribunal finds that he has not turned 50 years of age therefore he does satisfy the requirements of cl.602.212(6)(b). 

10) As he not satisfy the requirements of cl.602.212(6)(b), hhe is unable to meet the requirements of cl.602.212(6) in its entirety.

11) There is no suggestion that any of the other alternative sub criteria are relevant in this case.

12) Given the above findings, the requirements in cl.602.212(6) are not met.

13) The applicant is not medically unfit to depart Australia and therefore the requirement at Clause 602.215 applies.

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

14) 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).

15) At the commencement of the hearing when asked if he understood why the Department refused his application for a Medical Treatment visa, the applicant stated that he did not.  The Tribunal asked the applicant if his migration representative had discussed it with him and the applicant responded that he had not. In the light of the applicant’s submission to the Tribunal of 7 May 2019, the Tribunal asked the applicant if it could clarify with his migration agent what instructions he had taken from the applicant.  The applicant’s migration agent stated that he had discussed the Department’s decision “at length” with the applicant as well as the content of the submission.  The applicant then stated that perhaps his migration representative had discussed it with his wife.  After this exchange, the Tribunal agreed to a short adjournment so that the applicant could speak with his migration representative.

16) After the adjournment, the Tribunal asked the applicant if he wished add anything to his earlier evidence.  He responded that he didn’t have enough evidence before but he has now. 

17) Following the hearing the applicant submitted a Statutory Declaration dated 10 May 2019 which states:

“I confirm that the decision and its contents were discussed by my solicitor with me and my wife on 30 April 2019. 

During the hearing before the Tribunal, I became very agitated and distressed.  My legs were shaking and I felt the walls were closing in on me”[1].

[1] AAT file, folio 88.

18) While the Tribunal is prepared to accept that the applicant may have been agitated and distressed and that his legs were shaking and that he felt the walls were closing in on him his demeanour at hearing gave more of an appearance of disinterest bordering on a cavalier.  In any event even a heightened level of agitation does not explain why he was unable to recall a discussion regarding whether he was familiar with the Department’s refusal decision. 

Medical treatment

19) The applicant sought the visa for the period 5 December 2017 until 10 January 2019.  His GP wrote on the Form 1507 submitted as part of the application had an acute or chronic episode of depression following the illness of his wife [and] that she was ill. The treatment referred to was counselling and medication.

20) The Tribunal was provided with another Form 1507 provided by the same medical practitioner dated 17 April 2019. It indicates that the applicant has an anxiety disorder and reactive depression and that his treatment is two types of medication.  The doctor also provided a letter stating that he has been treating the applicant in regard to his chronic anxiety disorder and reactive depression over the last nine years. It states that the ongoing treatment is [details deleted] and that the management is conservative and the outlook is reserved.

21) The Tribunal received a submission from the applicant on 7 May 2019.  In the submission there is reference to the above-mentioned letter from the GP and also references from a report attached to the submission regarding the lack of adequate mental health services in Lebanon.  The report is entitled WHO-AIMS Report on The Mental Health System in Lebanon 2010by the World Health Organisation/Lebanese Ministry of Health.

22) At hearing the Tribunal asked the applicant about his current treatment.  The applicant responded that he is taking medication but he does not know the names of the medication.  He stated that his wife has the details.  The applicant stated that he feels upset and he is always thinking and has trouble sleeping.  The applicant stated that he is jumpy when he sleeps.  The Tribunal asked the applicant whether he does anything else do you do to manage his condition. He responded that he goes for walk every day.

23) The Tribunal asked the applicant what condition he had been diagnosed with.  He responded that he is always suffering from pain in his head.  The Tribunal put to him that that is not a condition and again asked him what condition he had been diagnosed with.  He stated that he cannot sleep.  The Tribunal asked the applicant whether he knows if he has been diagnosed with a medical condition.  He responded that he is always shaking and jump so that’s why he was given medication to sleep.  The Tribunal asked him if his doctor told him about the condition he has.  The applicant stated that he told the doctor that he can’t sleep and that he keeps thinking.  The doctor advised him to stop thinking but he said he cannot because there is so much to think about.

24) Referring to the evidence before it, the Tribunal asked the applicant when he was first diagnosed with anxiety disorder and reactive depression.  He responded that he saw the doctor two weeks ago.  The Tribunal repeated the question.  The applicant responded in it was in 2018 or 2017.  The Tribunal asked him if was diagnosed at the time you applied for the Medical Treatment visa or some time before.  He responded that it was between 2017 and 2018.

25) The Tribunal had concerns that the despite submitting evidence that he had been diagnosed nine years ago, the applicant was unable to state what condition he had, nor, could he name the medications he was taking.

26) In relation to the applicant’s medical condition, his wife gave evidence that the applicant needs treatment for high anxiety and depression.  She stated that she has known him for about 5 years first but he was diagnosed around nine years ago.  The witness stated that he applicant does not sleep at night.  In relation to what treatment he is receiving she responded that he receives counselling and takes medication and she tries to keep the family unity to keep him positive. 

27) The Tribunal put information to the applicant that it considers adverse in the terms required under section 359AA of the Migration Act. The applicant was asked if he wished to comment on the different evidence provided by him and the witness in relation to treatment being received. The applicant stated that he did not refer to the counselling because the doctor does not charge him because he is not eligible to receive Medicare benefits. The Tribunal asked him why that would be a reason not to refer to the fact that he is receving counselling. He responded that he has been going to the doctor but that he does not have anything to prove that.

28) The Tribunal put additional information to the applicant that it considers adverse in the terms required under section 359AA of the Migration Act. The applicant was asked if he wished to comment on the conflicting evidence provided by the applicant and the witness in relation to when he first diagnosed with depression and anxiety. The witness stated that he was diagnosed nine years ago but in his own oral evidence he stated that it was between 2017 and 2018. The applicant sought additional time to respond to this concern and was provided until 16 May 2019 to do so.

29) In the applicant’s Statutory Declaration of 10 May 2019 he stated:

“I have been seeing Dr [name deleted] for 9 years, when he first diagnosed me with depression and chronic anxiety.  When I was asked by the Tribunal when I was first diagnosed, I thought she meant in relation to this application.  That is why I said 2017/2018 because the application for a Medical Treatment visa was made on 11 December 2017”[2].

[2] AAT file, folio 88.

30) In the submission provided to the Tribunal dated 16 May 2019 states that the applicant has been undergoing treatment for his mental illness for the last nine years and goes on to refer to his medication.  The letter provided by the applicant’s GP dated 6 May 2019 states that the applicant has been treated in regard to his chronic anxiety disorder and reactive depression over the last nine years.

31) The Tribunal has some concerns regarding the applicant’s stated medical condition and treatment in the light of conflicting evidence but accepts he has been diagnosed with anxiety and depression and is taking medication. 

Migration History

32) The Department’s Decision Record outlines the applicant’s migration history as follows:

“Departmental records confirm the applicant [first] arrived in Australia on [date]/03/2007 as the holder of a Business Short Stay Visitor visa (subclass 456) and departed on [date]/06/2007.

On [date]/03/2008 the applicant returned to Australia as the holder of a Business Short Stay Visitor visa (subclass 456). The applicant was refused immigration clearance on grounds that he was a non-genuine business visitor. The visit was cancelled and the applicant was detained at [Immigration] Detention Facility pending supervised departure on [date]/03/2008.

On [date]/10/2008 the applicant returned to Australia as the holder of a Partner (Provisional subclass 309) visa based on the sponsorship by his [spouse].  On [date]/08/2009, the applicant departed Australia, and re-entered on [date]/09 2009 as a subclass 309 visitor holder.

On 20/04/2010, the applicant was refused Partner (Permanent, subclass 100) visa as the spouse relationship had broken down. On 02/03/2011, the Migration Review Tribunal affirmed the decision. The applicant remained onshore.

On 01/04/2011, the applicant made a request for Ministerial Intervention under section 351 of the Migration Act. On 23/06/2011, the Minister declined to intervene.

On 21/07/2011 the Bridging visa E (050) ceased and the applicant remained in Australia as an unlawful non-citizen.

On 16/03/2012 the applicant applied for a Protection visa (subclass 866). On 18/07/2012, the application was refused. On 14/02/2013, the Refugee Review Tribunal affirmed the decision.

On 08/04/2013, the applicant requested Ministerial Intervention under section 417 of the Migration Act. On 16/06/2013, the Minister declined to intervene.

On 20/04/2013, the applicant became an unlawful non-citizen again.  A month later, the applicant was granted the first of a series of Bridging visa E (050), primarily on departure grounds. The applicant did not depart Australia. On 31/05/2016 the applicant’s last Bridging visa E ceased and he has remained unlawfully in Australia since that date.

Following two unsuccessful request for Ministerial Intervention, in 2011 and 2013, the applicant made to further request for intervention under sections 417 and 351. All requests were unsuccessful. The most recent negative outcome was 30/10/2017.

On 08/12/2017, the applicant lodged the application for Medical Treatment and requested indefinite stay in Australia. The applicant has been declined and associated Bridging visa and he continues to remain unlawfully in the community”[3].

[3] AAT file folios 14 and 15.

33) The Tribunal discussed the applicant’s migration history with him.  He did not contest the facts as outlined, but stated that from around mid-2011 he used the services of an agent who was a fraudster.  The applicant’s migration representative provided information regarding the agent who he said was neither a registered migration agent nor a lawyer.  He stated that the person was well known for taking money from applicants for spurious applications.  The Tribunal explained that visa holders are expected to take responsibility for applications lodged on their behalf and for their visa status.

34) The applicant stated that aside from his wife and child he has no other family in Australia.  His parents [and siblings] are in Lebanon and one of his brothers lives in [another country].  The applicant stated that he has contact with them all the time.

35) The Tribunal put its concerns to the applicant.  These related to his migration history and incidents of non-compliance and that given he has a wife and child in Australia they provide incentives for him to remain in Australia.  The Tribunal agreed to take further written submissions on the question of the applicant’s intentions.

36) In the submission provided to the Tribunal dated 16 May 2019 it states that the applicant’s migration history is not contested.  It states that when the applicant is cured of his medical condition, he will consider his options according to the law at that time 

Findings

37) The Tribunal is prepared to accept that the applicant has been diagnosed with anxiety and depression and that he takes medication for these conditions.  The Tribunal has had regard to report on the mental health system in Lebanon submitted by the applicant.  The Tribunal accepts that mental health services are inadequate.  Nevertheless, in the light of the applicant’s oral evidence that his only treatment is medication and going for a daily walk, the Tribunal considers that it is likely that the applicant will be able to take appropriate medication in Lebanon and that he will be able to take a daily walk. 

38) The Tribunal has considered the applicant’s circumstances and has had regard to the fact that he has parents and siblings in Lebanon with whom he is in regular contact.  The Tribunal has given weight to the fact that the applicant is now married and has a wife and child in Australia and that they provide strong incentives for him to remain here.  Considering his migration history and that he has breached his conditions on several occasions and thereby has flouted Australia’s migration laws, the Tribunal placed is concerned that he will not depart Australia at the end of the visa period.  Therefore, the Tribunal is not satisfied the applicant genuinely intends to stay temporarily for the purpose for which the visa is granted.

39) Given the above findings, cl.602.215 is not met.

40) 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

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

Linda Holub
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).