1822132 (Migration)

[2020] AATA 3835

1822132 (Migration) [2020] AATA 3835 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822132

MEMBER:Roslyn Smidt

DATE:9 September 2020

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 09 September 2020 at 11:58am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine intention to stay temporarily for purpose of visa – visa, travel and residence history – arrived as carer for parents – parents’ illnesses and deaths, and brother’s terminal illness – applicant’s mental health and treatment – living costs and payment for treatment – lengthy, settled residence and established support network – circumstances if returned to home country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

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 13 July 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 20 June 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 (the Regulations).

3. The delegate refused to grant the applicant the visa because he was not satisfied that the applicant had a genuine intention to remain in Australia on a temporary basis.

4. The applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments.

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

   BACKGROUND

6. The applicant first visited Australia in 1995. She travelled frequently to Australia following that time. Her most recent arrival on a substantive visa was [in] October 2007 at which time she held a visitor visa. She travelled overseas in 2008 while holding a Bridging Visa B. She returned to Australia [in] November 2008 and had remained in the country since that time. From November 2008 until 21 March 2011 she held Bridging Visas.

7. On 6 January 2010 the applicant applied for a Medical Treatment visa stating that her mother who was a resident of Australia had suffered a stroke and required her care and support. This applicant was refused by a delegate of the Minister and the delegate’s decision was upheld by the Migration Review Tribunal on 3 June 2010.

8. On 21 March 2011 the applicant was granted a Medical Treatment Long Stay visa which was valid until 21 March 2016. According to the applicant’s evidence at the hearing she was granted this visa following Ministerial intervention to allow her to remain in Australia with her parents who were ill and needed care.

9. On 21 March 2016 the applicant applied for a Medical Treatment Visa to allow her to remain in Australia and continue to care for her parents. This application which was refused by the Department on 9 September 2016 because the applicant had not provided any evidence that she was seeking medical treatment and did not meet the requirements for a visa to provide support to a holder of medical treatment visa or any of the other requirements for grant of a medical treatment visa. 

10. According to death certificates provided by the applicant her mother died in September 2016 and her father in November 2016.

11. The delegate’s decision was affirmed by the Tribunal on 12 January 2017.  Following this she sought Ministerial intervention. On 19 December 2017 the applicant was advised that the Minister had decided it was not in the public interest to intervene in her case.

    EVIDENCE TO THE DEPARTMENT

12. On 20 June 2018 the applicant applied for a Medical Treatment visa to allow her to remain in Australia to seek counselling for depression and anxiety until 24 May 2019. In support of this application she provided a letter dated 10 May 2018 from clinical psychologist [Ms A] which states that the applicant continued to report symptoms of depression and anxiety related to her problems with the Department of Immigration. It states that based on relevant criteria the applicant’s symptoms were consistent with a diagnosis of major depressive episode and anxious distress (severe).

13. [Ms A] stated that she had provided four sessions of psychological therapy to the applicant on a pro-bono basis and would not be able to see her on a weekly or a fortnightly basis. It states that the applicant required treatment which would include a combination of medication and psychological therapy over the next 12 months [until May 2019].

14. The letter goes on to say that the applicant lacks social support in England and faces the real possibility that she would be unemployed and homeless if she returned to the UK. It requests that she be granted time to host a small ceremony and grieve the loss of parents and to sort out her personal belongings in preparation for her return to the UK.

15. The applicant also provided a letter dated 24 May 2018 from [Dr B] which states that she was suffering from anxiety and depression and had commenced a course of medication and psychological counselling. It states that she required this treatment for a period of at least 12 months.

16. The delegate refused the visa on 13 July 2018 because after reviewing the applicant’s migration history and noting that she had failed to provide sufficient evidence of intention or incentive to depart Australia within the near future he concluded that she wished to obtain the visa for the purpose of maintaining her residence in Australia and she therefore did not meet cl.602.215. In reaching this conclusion he noted that she had not provided any evidence which suggested that she would be unable to obtain the treatment which she sought in the UK or evidence of circumstances that were sufficiently compelling or exceptional to warrant a further stay on a Medical Treatment visa.

    EVIDENCE TO THE TRIBUNAL

17. On 3 August 2020 the applicant provided a copy of an email from [Town] Psychology and Neurotherapy which states that she had been placed on a waitlist and her first appointment with [Ms A] was scheduled for 4 November. She also provided copies of the 2018 letters from [Ms A] and [Dr B].

18. On 10 August 2020 the applicant provided a letter 6 August 2020 from the Red Cross which stated that she had been receiving financial support since 29 May 2020.

19. The applicant attended a hearing of the Tribunal on 13 August 2020. The hearing was held by video link.

20. I began by explaining that Medical Treatment visas covered situations in which an applicant sought to obtain medical treatment in Australia and had concluded the relevant arrangments. I observed that there was no evidence before me regarding arrangements for a course of treatment or for payment for this treatment. I also noted that Medical Treatment visas are for a temporary stay and that she had previously requested a visa to remain in Australia until May 2019. After observing that I was aware of the difficulties presented by the current pandemic I asked when she planned to leave Australia.

21. The applicant, who appeared to be very distressed, spoke at some length about her difficult life, the loss of her parents, her previous dealing with the Department and her ongoing mental health issues. She indicated that she was or would be receiving treatment, but the nature of these arrangements was not clear. She said that she did intend to leave Australia but she could not leave currently because her boat needed repairs.

22. I advised the applicant that while I was sympathetic to her problems, I had no ability to grant a visa unless she met the requirements set out in law. I also observed that there were other options available for her to leave Australia if her boat was not seaworthy.

23. After some discussion I advised the applicant that I would delay finalisation of her application to allow her to provide further written submissions regarding her medical treatment and her plans for departure should she wish to do so.

24. On 19 August 2020 the applicant provided a letter from [Ms A] which states that she had been accessing therapy from a community-based psychologist because of her inability to afford to pay for ongoing treatment. The letter also states that the applicant has been allocated 10 sessions of funding under the PHN Healthy Minds (Suicide Prevention Pathway) at a cost of $181.50 per session following which she would be eligible to continue her treatment using Medicare Better Access rebates which will be charged at the concessional rate of $160 per session. It anticipates that the treatment will take at least twelve months. It also notes that the applicant’s mental health would benefit if she were given permission to work. Finally, it states that the applicant’s brother who is an Australian citizen has terminal cancer and a life expectancy of 14 months.

25. At my request a Tribunal officer contacted [Ms A] to seek clarification regarding the applicant’s past and proposed medical treatment. [Ms A] advised that the applicant was first referred by a GP in early 2018. Her first appointment was on 8 February 2018 and a treatment plan was put in place at that time. The applicant did not finish the plan as she could not afford the gap cost. She was referred again by a different GP on 30 July 2020 at which point a suicide prevention plan was put in place. The plan is for 10 sessions which are usually provided over a ten-week period. If the plan has not been successful the applicant can obtain a further ten session. A maximum of ten sessions a year can be provided. A further ten treatment sessions a year can be accessed on Better Access treatment plan that will run for 10 sessions (maximum of 10 sessions per calendar year).

26. The applicant also provided a letter from [Dr C] dated 18 August 2020. The letter states that the applicant is suffering from severe depression and anxiety and has been suffering from post-traumatic stress disorder since an assault in 2014. It states that [Dr C] has been providing the applicant with support over the past two years when she was unable to pay for psychological services provided by [Ms A]. The frequency of these sessions is not clear, but the letter states the applicant is living in poverty and has no means of paying for services. It also states that she has settled in Australia and has established a supportive network of friends, while becoming disconnected from her former home in the UK Finally, it states that the applicant has expressed suicidal thoughts and recommends that she be provided with any and all available supports.

27. In an accompanying letter the applicant requested that, in keeping with the information in [Ms A]’s letter, she be allowed to remain in Australia for a further twelve months and that the Tribunal agree to the therapy and its costs and recommend that she be given permission to work.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. 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 a genuine intention to stay temporarily for the visa purpose.

29. Clause 602.211 requires that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

30. At the time of her application in June 2018 the applicant provided evidence that she was suffering from depression and anxiety and required long term counselling. She provided evidence that she had received some counselling but did not provide evidence that arrangements have been concluded to carry out and pay for further treatment.

31. There are some puzzling aspects to the applicant’s evidence to the  Tribunal regarding her mental health. She appears to have received at most limited support between the delegate’s decision and receiving an invitation to attend a hearing of the Tribunal in July this year at which time she appears to have sought a referral to access further treatment. That said, I have no reason to doubt the evidence from [Ms A] and [Dr C] that she is suffering from depression, anxiety and PTSD and wishes to remain in Australia at least in part to obtain medical treatment.

32. Clause 602.212 requires the applicant to meet one of the seven alternative sub criteria in cl.602.212(2)-(8) which relate to the basis for which the stay in Australia is required.

33. Clause 602.212 (2) requires that evidence be provided that arrangements have been concluded to carry out the treatment and for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia. Furthermore, payment of those costs must not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia or evidence must be produced that the relevant government authority has approved the payment of those costs.

34. According to the evidence from [Dr C] the applicant is destitute. She is currently receiving some financial support from the Red Cross. The only plan which appears to be in place for her to cover her living costs and any gap between the rebates she expects to receive from Medicare and the costs of the treatment plan described by [Ms A] appears to be her hope or expectation that she will be granted permission to work in Australia. In my view this does not constitute concluded arrangements to cover all of the expenses of her stay in Australia.

35. In addition, it appears that the treatment which the applicant hopes or expects to receive will be funded in part by the Commonwealth. No evidence of Commonwealth approval for this funding has been provided.

36. On the available evidence the applicant does not appear to meet 602.212 (2). That said, if this was the only issue with her application, I would have provided her with an opportunity to provide additional information on how she intends to fund her stay in Australia and to seek documentary evidence that the Commonwealth has approved funding for her treatment. However, as discussed below, I have formed the view that she does not meet cl.602.215. It is therefore not necessary to reach a conclusion in relation to this issue.

37. Clause 602.212 (8) covers situations in which an applicant has concluded arrangements to carry out treatment in Australia and there are compelling personal reasons to grant of the visa.

38. The applicant has submitted that she meets this requirement. The personal reasons involved  appear to be that she has few if any remaining ties in the UK, that she would probably be destitute and homeless if she returned to the UK and that her mental health would suffer. In addition, according to [Ms A]’s letter her brother who lives in Australia is terminally ill.

39. With regard to the possibility that the applicant would be destitute or homeless if she returned to the UK, I note she appears to have a boat which suggests that she is not without assets. With regard to her mental health and general wellbeing I note that the UK has health and welfare programs which she could no doubt access if she returned to her homeland. With regard to her brother’s illness, the applicant herself has never mentioned this and no supporting evidence of his illness or why this means she should remain in Australia has been provided.

40. On the available evidence the applicant does not appear to meet cl. 602.212 (8). If this had been the only issue relating to her application, I would have provided her with an opportunity to provide additional information on matters such as her brother’s circumstances before reaching a conclusion.   However, as noted above I have formed the view that the applicant does not meet cl.602.215 it is therefore not necessary to reach a conclusion in relation to this issue.

41. Clause 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires, inter alia, that the applicant 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.  There is no evidence which suggests that the applicant current application for a permanent residence in Australia and she therefore does not meet cl. 602.212(6).

42. There is no suggestion that any of the other alternative sub criteria in cl 602.212 are relevant in this case.

43. 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).

44. The applicant arrived in Australia on a tourist visa and has now been in Australia continuously since November 2008.  She initially sought to extend her stay to provide support for her parents and in March 2011 was granted a visa which allowed her to remain in the country until March 2016 for that reason. She did not leave the country when that visa expired and applied immediately for a further visa to remain in Australia to care for her parents. Her parents both passed away in September and November 2016. Despite no longer needing to care for her parents the applicant remained in Australia awaiting the outcome of her application lodged in March 2016 which was before the Tribunal at that time. The applicant did not leave Australia when that application was refused by a differently constituted Tribunal on 12 January 2017.  Following that the applicant remained in Australia and sought Ministerial intervention, which was refused in December 2017. She remained in Australia following that refusal and in June 2018 lodged the application which is the subject of this review. In that application she requested a further stay until May 2019. 

45. It is now more than a year since the stay the applicant originally requested in relation to this application and she has requested a further twelve months stay in Australia. When asked about her plans to depart at the hearing she said that she could not leave because her boat needed to be repaired but gave no indication that she had given serous thought to when or how she might leave.

46. It is clear that the applicant does not wish to leave Australia and return to the UK. While her reasons for wishing to remain may be deserving of compassion, the issue to be determined here is not whether the applicant has understandable reasons for wishing to remain in Australia or even whether her health and well-being would suffer if she was unable to stay. The issue is whether she has a genuine intention to stay temporarily for the purpose of the visa. I have formed the view that she does not intend to remain temporarily but will seek to remain in Australia beyond any period specified in a Medical Treatment visa. She therefore does to meet does not meet Clause 602.215.

47. As noted above, this requirement will not apply if the applicant is medically unfit to depart Australia as described in cl.602.212(6). However, this covers cases in which the applicant has applied for a permanent visa and met all of the requirements apart from the health criteria. This clearly does not apply to the applicant.

1. 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

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

   Roslyn Smidt
   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).