1903295 (Migration)

[2021] AATA 5470

1903295 (Migration) [2021] AATA 5470 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903295

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 March 2021 at 12:10 pm (WA time)

DATE OF WRITTEN RECORD:                6 April 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 06 April 2021 at 12:38pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary entrant – treatment for anxiety and depressive disorder – no evidence for need for ongoing treatment – previous visas granted – protection visa refusal appealed at various levels – children born in Australia – medical conditions of child – 11 years’ residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.211, 602.212

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.

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  

1. MEMBER: This is an application for review of a decision by a delegate of the Minister for Home Affairs which was made on 11 February 2019. The decision was to refuse to grant you a Medical Treatment Visitor Class UB visa under section 65 of the Migration Act 1958. You had applied for this visa on 5 February 2019 and at that time Class UB contained one subclass, Subclass 602 – Medical Treatment.

2. The criteria for the visa are set out in part 602 of Schedule 2 to the Migration Regulations 1994. I think it is useful to set out the reasons for why this visa was refused by the delegate, just so to set out the background. I should say that I am conducting a hearing de novo. I accept that I do not need to adopt any of the key findings of the delegate. But this is the [factual] background to you and your husband’s situation.

3. It seems that [in] February 2005, you and your husband arrived in Australia.  Your husband was the holder of a Student Vocational Education Sector Subclass 572 visa.  You were the holder of a visa also as a secondary applicant.  A few years later, on 13 March 2017 (sic), your husband applied for a Higher Education Sector Class TU visa.  That was also granted on 26 November 2007.  About five years after entry, on 9 March 2010 your husband applied for another visa.  That was a Student Vocational Education Sector Class TU visa.  This third application was refused by the Department, and that was refused on 6 September 2010.  Your husband sought review of that decision at the old Migration Review Tribunal.  This tribunal, the Administrative Appeals Tribunal, does the same function now.  But he sought review at the tribunal on 14 September 2010.  He was successful.  The tribunal remitted, or sent back, the decision to the department.  But it seems that again, the Department refused the visa, and it was refused on 15 November 2012.  Your husband sought a review of that decision at the Migration Review Tribunal on 10 December 2012.  But the Migration Review Tribunal seems to have determined that the application was outside of the required timeframe to commence, and therefore it had no jurisdiction. 

4. On 13 November 2012, it seems that you and your husband had applied for a Permanent Protection Class XA visa.  It is important to bear in mind the timeframe.  You had entered [in] February 2005, and then seven or so years later was the first application for a Protection visa on 13 November 2012.  That was refused by the Department on 20 August 2013.  Your husband sought review of that decision at the Refugee Review Tribunal, which affirmed the decision on 14 July 2014.  It seems your husband then sought further review or appeal at the Federal Court of Australia [in] August 2014.  For reasons I’m not entirely aware of, the Minister decided to withdraw in that proceeding on 19 February 2015.  It was then sent back to the Refugee Review Tribunal, who heard the matter and again affirmed the application on 1 June 2015.  It seems there was then an appeal or review sought before the Federal Court of Australia [in] June 2015.  It seems that the Minister was successful in that matter on 19 July 2015.  It appears that your husband sought further appeal at the full Federal Court of Australia [in] July 2016.  That resulted in a successful outcome for the Minister on 14 March 2017.  

5. Your husband then continued further.  He sought review before the High Court of Australia, which again resulted in a win, or a successful outcome to the Minister.  That was recorded [in] August 2017.  A few weeks later, on 6 September 2017, your husband, or may have been both of you, I’m not aware, applied for a Ministerial intervention because of all these circumstances and your personal circumstances.  It seems that that was also not successful, and a decision was made on 12 October 2017.  At the moment, you and your husband hold Bridging visa E. 

6. What that history shows, and I acknowledge that you and your husband have the legal right, under Australian law, to have made those applications.  That is a given.  But what it has tended to indicate to me is that both you and your husband have, over many years, sought to overturn adverse decisions of Australia authorities including the Courts.  It is clear to me that you are both quite determined to seek means to remain here in Australia.  Again, I am not being critical of that.  On 5 February 2019, you yourself, [applicant’s name], lodged this application for a Medical Treatment visa.  You had stated in your application that you had wanted to remain in Australia until 14 February 2020, so a period of 12 months.  You sought the Medical visa to seek medical treatment for a mix of anxiety and depressive disorder.  Form 1507 had been provided as required in support of the application, and it confirmed that you are seeking medical treatment in Australia. 

7. But when the delegate made his or her decision, the delegate noted that the application did not state that you were gravely ill or receiving intensive or critical care, and it did not indicate that you must remain in Australia for ongoing consultation.  The information did not state that the treatment was not available to you outside of Australia.  In the view of the delegate, you had not provided sufficient documentation to demonstrate intention or incentive to depart Australia at time of decision or in the near future.  The delegate noted that you had unsuccessfully applied for Permanent visa on-shore – of course, that was the Protection visa – and that you had taken every opportunity in the view of the delegate to present your case or circumstances for review.  In the view of the delegate, your adverse migration history indicated that you do intend to continue to seek a visa pathway to remain in Australia on a permanent basis.  The delegate noted that you had an Australian citizen child – of course, you have two.  You have told me today that you have two Australian-born children, and the delegate found that the presence of an Australian-born child would be strong incentive to remain in Australia, rather than returning to Pakistan.  The delegate considered you had not presented any personally compelling or exceptional circumstances to warrant departure from the legislation concerning the genuine visit criterion.  They were all the reasons why this visa was refused.

8. I note that the records for you indicate to me that you have not departed Australia since about [October] 2009, which is now about 11-and-a-half years.  In addition to your application for a Medical visa, I am aware that there was a decision handed down on the 3 March 2021 by another Member of the AAT, the tribunal, Member Gagliardi.  That decision was (indistinct) your husband’s application for a Medical Treatment visa.  I have read that decision.  I am aware that the Member considered that his case meets the relevant guidelines for consideration of Ministerial intervention on the basis of the condition of your [age]-year-old Australian child.  I will take that into consideration.  It is fair to say that there were no documents provided by you to support your suffering of any medical or related condition.  There was, however, a great deal of information in relation to your son, your eldest child, and I think some information in relation to your husband.  But there was certainly nothing before me of assistance to corroborate that you have a medical condition for which you seek or require treatment in Australia.

9. I also note that there had also been an application for a Medical Treatment visa from one of your children, your daughter, [name deleted], and that application had been withdrawn on 17 January 2020.  There is a very extensive interface between you, your husband, and your children, with the Australian migration system. 

10. We spoke at some length today.  You are in Adelaide; I am in Perth.  Your husband was allowed to remain in the room with you.  I consider that appropriate to provide support to you.  You were not represented, and you told me that you had last had representation from a migration agent about two years ago, but because of financial issues you have not had any assistance since then.  You are [an]-year-old Pakistan-born woman who originates from Peshawar.  Your father passed away about 11 years ago.  Your mother now lives in [Country 1] and is supported by your brothers.  One brother also lives in [Country 1] with her, and another brother lives in [Country 2].  Your mother has been in [Country 1] for 10 years.  There is no suggestion that you or your husband or family have any entry rights into [Country 1].  There are no visas that I am aware of.  Your brother, or one of your brothers, sponsored your mother to come to [Country 1].  You last saw your mother face to face nine years ago, when your mother came to Australia.  She came alone.  She stayed for about three months.  Your mother is aged over [age].  You speak to her about once a week by telephone.  You tell me that in relation to your mother’s family, and your father’s family, you have very little contact with any family members in Pakistan.  You have no friends in [Country 1].  You have never been to [Country 1] yourself.  The last time that you yourself were in Pakistan was in 2007.  You married your husband in 2005 in Pakistan and that was an arranged marriage.

11. I queried with you as to whether your husband has family in Pakistan, and you confirmed to me that he does, but there is not any communication, or any positive communication occurring between the family and your husband.  You outlined to me that you have had disagreements with your family members, particularly in Pakistan, and they relate to financial issues.  You formed the view that the family believe that you and your husband and family will be a burden upon them, and very few, if any, are talking to you at the moment.  You have asked for financial help, and you say that your husband’s father has provided some help.  We spoke about all of those visas that I have just summarised.  I raised them with you because I wanted to confirm the accuracy of that information in the decision record.  I am satisfied that the information is correct from your answers. 

12. It seems that the Protection visa claims were based upon the fact that you and your husband belong to a minority, or you do, rather, being Kashmiri-born women (sic).  I have not read the decision, but I accept that it is a reason that you claimed Protection or full Protection.  I then raised with you that the Protection visa had been applied for roughly seven years after you and your husband had entered Australia.  You sought to explain that to me because of the fact that your husband was studying here in Australia and had been subject to Student visas, enabling him to remain onshore with you and the family. 

13. I then summarised your visa history.  I sought from you your response as to how I should look at that.  Because on one view, it could have the potential to indicate that you and your husband were, to say the least, determined not to depart Australia.  You disagreed with that suggestion.  We then spoke about the current medical visa, which you applied for on 5 February 2019.  You told me that you had been suffering a lot of stress issues and medical issues.  You had been suffering stress and anxiety for about the last four years or so.  You experience a lot of tension, a lot of depression, occasional blackouts, and you believe you would receive better treatment here in Australia.  You had been living in Adelaide for roughly four-and-a-half years.  There appeared potentially to be a correlation between your move to Adelaide from Darwin, and the time that you had been suffering these conditions.  You acknowledged that that was, or was part of, the reason for the stress.  But there are, of course, many other issues to do with your son and his conditions.  You did not know anybody in Adelaide.  You live in a suburb called [deleted] in Adelaide. 

14. You were very keen to outline the extensive medical history of your son.  He has suffered [medical condition], has had two or three surgeries.  For a year or so he was on crutches.  He has had serious, life-threatening allergies.  He also suffers stress.  He had said that he was going to harm himself at some stage.  He has injections every month.  All of that history and background is supported from the documents provided to me.  I accept that he has had considerable medical issues.  That is a given.  I note, as at time of decision today, that he is at school, and that is a positive to see that he is able to attend school.  Your son is [age].  He was born in Australia.  Your daughter is [age], also born here in Australia.  It is good to see that your daughter is healthy.  I queried with you as to whether you had been getting any assistance for your medical conditions, and you told me that for the last two years or so, you had not had any treatments or counselling for your health issues, and that was in relation to your financial situation.  It appears that you had taken anti-depressants, but you had last been taking them about two years or so ago.  You had last seen somebody for your medical situation two years ago.  I raised with you that there was no documentary evidence or reports supporting any of these claims that you made about your health, and you said to me that you could send reports.  I identified to you that any reports would be somewhat aged, and arguably not relevant.  They would have to be at least two years old.

15. I asked how you are financially surviving at the moment.  You said to me that you are getting assistance through [charities] and also Centrelink.  At some stage, you told me that you were getting some financial assistance for the treatment of your depression and your anxiety.  That was up to about two years ago.  I asked you why that had stopped, and you said that the Immigration Department had stopped the payments a couple of years ago.  I then inquired with you as to why you and your husband and the family have not returned to Pakistan already, and you identified that there are major family issues back in Pakistan.  Your husband is not working at the moment.  You said that you have not worked in Australia.  I then raised with you as to whether you could receive the treatment you require in Pakistan for your mental health.  And you said to me that you could not afford to have this treatment back in Pakistan.  This all raised a few concerns for me, and that is this, that if there are considerable financial issues that have or are preventing you from obtaining the assistance that you need for your mental health, as to why your situation would be any different if the visa were to be issued by the Department.  The fact being that you couldn’t afford the treatment anyway.  You said to me that you would do the counselling if the visa was issued, but that you have not been doing any treatment for two years.

16. You sought to explain that further with me, and you believed that you might be able to get assistance from the Immigration Department, and perhaps assistance from family members.  I then raised with you that if it were the situation that you could obtain financial assistance from family members, why was it you had not been getting that assistance over the last two years or so, if family were open to assisting?  You weren’t able to provide a response to that.  You then said that your family in [Country 1] and [Country 2] may be able to assist you.  Again, I pursued that line of questioning, and I said to you, why haven’t your family in [Country 1] been helping you already?  You responded to me that you do not know.  I asked you whether you had actually asked your family, and you responded no, but that you could ask them. 

17. At that point in time I did have some misgivings or concerns about the credibility of what you were telling me.  And I put it to you as to whether the real reason for applying for this medical visa was to extend the stay of you and your family here in Australia.  There was no response initially, but then you confirmed that is not the reason, and you said to me that you want to get better.  I asked you, why would you not have asked your family already, if you believed they were in a position to help financially?  You said that your mother is really old.  I then asked, what about the brothers, as to their ability to assist?  You responded that there are problems with your brothers, and that they are not talking to you at the moment, and perhaps there are financial reasons for them.

18. Based upon your answer that you’re not talking to your brothers, I inquired as to whether you had asked your mother to inquire with your brothers on your behalf, it being the case that you talk to your mother every week.  It was clear to me from your answer that you had not raised that with your mother, but that at some future time you could ask your mum to do that.  I did not find that evidence to be particularly persuasive.  I asked whether there were any reasons for why you had not obtained financial assistance from your brother or brothers already up to this point of time.  You explained to me that one of your brothers had gotten divorced.  I asked whether you were actually doing anything to assist with your depression and anxiety.  You said to me that you are taking Panadol if and when you need it.  You then told me you had last seen a doctor two years ago.  And again, you said that the reason for that was that you cannot afford to see the doctors because you have no Medicare card. 

19. You told me about your debts at the moment.  You have an electricity debt of $3000, but there are no other debts.  You told me that your son’s medical fees had been covered by Medicare.  I asked what treatment your son is getting at the moment, and you said that he gets [specified] treatment every month.  He’s having treatment for asthma and also his allergies.  I inquired with you as to whether your husband’s family have been helping financially in any way.  I inquired as to whether your father-in-law, your husband’s father, had had surgery.  There was a reason for that.  I am looking at the decision dated 3 March 2021 in relation to your husband’s application for the Medical visa.  The case number is 1903298.  It seems that your husband had said that his father had been, or was, a [Occupation 1] in Pakistan.  And the father had been supporting family in Australia financially, but after his father had surgery, he had told your husband that he could not provide support indefinitely.  And that’s the reason I inquired about that.  It was clear to me that you had no knowledge of your father-in-law supporting the family financially.  When I raised that, the inconsistency, you changed your tack, or changed your story to some extent, and that he probably did provide some assistance.  I have considered your answer upon that.  I found it curious why you would not have known, but in the circumstances, I am not going to make any adverse assessment or finding about that evidence. 

1. I spoke to your husband, as to whether he wanted to clarify or wanted to tell me anything.  He sought to explain the seven-year delay in applying for protection in Australia.  He pointed out that you had come on Student visas.  You had planned to sit out the Student visas, but at some point in time, his parents had told him the situation in Pakistan had not gotten any better, and that was a catalyst for seeking the Protection visa when it was.  He said that you were fearful when you first arrived into Australia.  Your husband told me that his father had last sent money in 2013 or 2014, and that after surgery in 2015 he had stopped providing money.  He told me that if the visa was to be granted there’s a good chance of getting financial assistance from one of your brothers.  He identified that it was the brother living in [Country 2] who is in a position to help.  He is a [Occupation 2].  I queried as to why you and your husband had not already received financial assistance.  Your husband sought to explain that his brother-in-law, was going through a divorce, and he said he was in a better position now because it was two years or so since the divorce had settled. 

2. I spoke to you again, [applicant’s name], and I asked what is the treatment you say that you now need?  You say that you need the treatment for your anxiety or depression.  I asked who you would see, and you said you would see medical people.  You confirmed that you had not been able to afford treatment over the last two years.  That is a lot of information, but that is the information that I had before me. 

3. I now need to address the particular requirements which I outlined to you in the introduction to the hearing.  As I said, a Subclass 602 Medical Treatment visa is for persons seeking to, in your case, remain in Australia temporarily for medical treatment or related purposes.  The first question for me is your wish to remain in Australia for medical or related purposes.  There is no definition of what medical or related purposes is.  However, in your case, and I’m looking at it as to your subjective intention, or your evidence, I am satisfied that you are seeking to remain in Australia for the purposes of medical treatment or for related purposes.  That is a subjective assessment.  Given that finding, the requirement in clause 602.211 is met in my view.  The next question is, are the medical treatment requirements met?  Clause 602.212 requires an applicant to meet one of seven alternative sub-criteria.  They are found in clause 602.212(2) to (8), and they relate to the basis for which the stay in Australia is required.  Relevantly, clause 602.212(2) relates to an applicant seeking to obtain medical treatment, other than for the purposes of surrogate motherhood.  Broadly speaking, they require that arrangements for the treatment have been concluded.  There is no evidence before me that any arrangements for treatment of your alleged medical condition have been concluded. 

4. The next requirement is, if the treatment is an organ transplant.  That is not relevant to your situation.  The next requirement is that you are free of a disease or a condition that may be a threat to public health or a danger to the Australian community.  There is no evidence or information upon which I can make a finding that you are or are not free of a disease or a condition.  The next requirement is that arrangements for payment of all costs and expenses associated with the treatment and stay have been concluded.  There is no evidence that arrangements for payments of any costs or any expenses associated with the treatment have been concluded.  The next requirement is payments of 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 evidence upon that issue.  There is no suggestion that any of the alternative sub-criteria are relevant in this case. 

5. My assessment is that you do not meet the requirements set out in clause 602.212(2)(a), (2)(f), and there is no need to consider the remainder given that those findings are requirements of clause 602.212(2) are not met.  As I discussed with you at the beginning, you are not unfit to depart Australia.  Clause 602.212 requires an applicant to meet one of the seven alternative sub-criteria in clause 602.212(2) to (8).  These will act as a basis for which the stay in Australia is required.  Clause 602.212(6) relates to an applicant being medically unfit to depart Australia.  It requires an applicant to be in Australia, which you are.  It requires an applicant to have turned 50.  You have not.  It also requires that an applicant has applied for a Permanent visa and appears to have met all the criteria for that visa other than the health criteria.  Whilst you have applied for a Permanent visa in Australia, you were not successful at several levels.  There is no evidence that you are unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a medical officer of the Commonwealth.  Considering all of those things, the requirements in clause 602.212(6) are not met. 

6. Clause 602.214 requires that no Australian Citizen or Permanent Resident would be disadvantaged in obtaining medical treatment or consultation if the visa were granted.  There is no evidence that any Australian Citizen or Permanent Resident would be disadvantaged.  I consider that the requirements in Clause 602.214 are met.  And that leaves, of course, whether you have a genuine intention to stay temporarily for the visa purpose.  Clause 602.215 requires that the applicant genuinely intend to stay temporarily for the purpose for which the visa is granted.  The tribunal must have regard to whether you have complied substantially with conditions of the last held substantive visa, or any subsequent bridging visa, as well as your intention to comply with conditions to which the Subclass 602 visa would be subject, and any other relevant matter. 

7. I have considered all of the evidence before me.  I look at your situation, where you and your husband have been in Australia since 2007 (sic), and you have not departed Australia since [October] 2009.  That is well over 11 years.  When I look at the evidence, and what you have told me, you have no relationships or any functional relationships with any people in Pakistan, although I note your husband has some communication with his own family.  You say there have been conflicts in your Pakistan-based family that have involved you.  I accept that evidence.  But I must make a finding that there would be no incentive for you to depart Australia arising from having close family connections or friendships in your home country, Pakistan.  You say that you have family in [Country 1] and [Country 2].  I accept that you do.  Your mother and one of your brothers live in [Country 1], and the other brother lives in [Country 2].  You have never been to those countries.  There is no evidence or information that you have any right or any visas to enter either of those countries at the moment.  You may well be, but there is no indication at the moment.  You tell me that the relationships between you and your brothers are somewhat in conflict.  And whilst I accept you would have an incentive to spend time with your mother, the same does not apply to your two brothers.  There are no indications that you have any assets in Pakistan or anywhere else that may present as incentive for you to depart Australia now or in the near future. 

8. You have two Australian-born children.  I consider that fact in itself to be incentive for you and your husband to wish to remain here in Australia.  What is very clear from your visa history is that you and your husband have been determined to challenge every adverse decision in relation to your migration status since September of 2010.  That has taken you to the previous Migration Review Tribunal, the Refugee Review Tribunal, the Federal Court, the full Federal Court, and even as far as the High Court.  That indicates to me a very strong will to remain in this country and not depart.  I can understand why.  I can readily understand why:  that relates, I think, to the physical health and mental health of primarily your son.  But I also accept that you and your husband have suffered a very difficult journey over many years now relating to your son’s medical conditions and also in relation to fighting these matters for so long. 

9. I accept that you would have anxiety and depression, and that he also would too.  But there is no evidence before me that you require any ongoing treatment for those conditions, such that would warrant the granting of this visa.  I did not find your evidence as to the reasons why you could not afford the treatment to be compelling.  It’s clear that when I started to raise with you that your financial circumstances would be no different, even if you were granted a visa, I found that you provided responses that were not particularly compelling at all.  I find that you did not meet clause 602.212(6) because you are not medically unfit to depart Australia.  I find that you do not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.  Having regard to the considerations set out in clause 602.215(1)(a) to (c), those considerations relate to whether you have substantially complied with conditions of the last held substantive visa or subsequent bridging visa, as well as your intention to comply with the conditions to which the Subclass 602 visa would be subject, and any other relevant matter.  My view is that the evidence clearly points to you not having a genuine intention to stay temporarily.  And the same applies to your husband. 

10. Based upon those findings, you do not meet the requirements for the grant of the visa.  The decision under review is affirmed.  My decision is that I affirm the decision not to grant a Medical Treatment Visitor Class UB visa. 

    END OF ORAL DECISION  

Michael Judd
Member