1909792 (Migration)

[2021] AATA 5333

1909792 (Migration) [2021] AATA 5333 (6 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1909792

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 October 2021 at 11:20 am (WA time)

DATE OF WRITTEN RECORD:                18 October 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 18 October 2021 at 12:33pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – period of unlawful residence – lengthy stay in Australia – support person for the applicant’s wife – no intensive or critical care – medically unfit to depart Australia – abiding by visa conditions – maintain ongoing residence in Australia – adequate treatments available in Nepal – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 417
Migration Regulations 1994, Schedule 2, cls 602.212, 602.214-602.216

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 has been an application or applications rather for review of decisions that were made by a delegate of the Minister for Home Affairs on 3 April 2019. There are in effect two decisions relating to [the applicant husband and wife] respectively. The decisions were to refuse to grant the applicants a Medical Treatment Visitor (class UB) visa under section 65 of the Migration Act 1958.

2. [The applicant wife] applied for the visa on 20 March 2019. At that time class UB contained one subclass: subclass 602 medical treatment. The criteria for the visa are set out in part 602 of schedule 2 to the Migration Regulations. It is important that I set out the reasons in relation to each of the applicants.

1. First, [the applicant wife’s name], looking at your decision the delegate noted that departmental records demonstrated that [in] June 2009 you arrived into Australia as the holder of a [Student] visa.  On 17 July 2010, a year later, that student visa was cancelled, and you then sought various avenues of review of that cancellation decision and you went as far as the Full Federal Court of Australia [in] May 2018.  That took you about eight years.

1. This resulted in what is called a win to the Minister being recorded [in] November 2018.  The decision record indicates that earlier being 25 July 2011 you also with your husband applied for a Protection (class PV) visa.  That application was refused on 21 December 2011.  You unsuccessfully sought review of that decision at the previous Refugee Review Tribunal on 10 January 2012.  You were not successful.  The decision was affirmed by the Refugee Review Tribunal on 4 April 2012.

1. Shortly after [in] May 2012 under section 417 of the Act you sought Ministerial intervention, which resulted in an outcome of being not considered, and that was recorded [in] July 2012.  It appears that for quite some period of time you were, as was your husband, an unlawful non‑citizen.  You currently hold a bridging visa E.

1. Now, the information from the decision record, which you eventually accepted in the tribunal hearing, was that you had been an unlawful non‑citizen for a significant period of time, five years nine months and 18 days as at the time of this decision.

1. So, on 20 March you then lodged the application for this medical treatment visa.  You had stated that you would like to remain in Australia for another five months to seek medical treatment for cervical radiculopathy and lumbar radiculopathy.  You had provided a form 1507 from a doctor in support of the application and that confirmed that you are seeking medical treatment in Australia as at that time.

1. The documentation, and I am reading from the decision record, did not state that you are gravely ill or receiving intensive or critical care nor did it state that you must remain in Australia for the ongoing consultation.  It did not state that the treatment you are seeking was unavailable outside of Australia.  I note that you come from Nepal.

1. You had not provided sufficient documentation to demonstrate your intention or incentive to depart Australia now or in the near future.  Departmental records had confirmed that you had unsuccessfully applied for multiple onshore visas and had taken a great deal of opportunity to present your case or circumstances for review.  You had breached previous visa conditions by being an unlawful non-citizen for such a period of time.

1. During that period you had not contacted the Department to resolve or regularise your immigration status and that indicated to the delegate that your adverse migration history strongly indicated that you intend to continue to seek a visa pathway to remain here in Australia on a permanent basis.  There were no compelling circumstances.

1. The situation in relation to your [husband] was different in the sense that he was not applying for medical treatment himself but the basis of his application was that he is a person who will provide support to you being a person who is seeking medical treatment in Australia.  So, for that reason the delegate considered your husband’s application against the requirements of subclause 602.212(4) and was not satisfied that your husband’s situation met the requirements.

1. I'm not going to go into those reasons in any detail suffice to say the obvious that the success of his application depended on yours because he was in effect following on the coat tails of your application.  And that is the way that I have considered it.

1. So, they were the reasons for refusal.  In considering a medical treatment visa application or application for review I have held two separate hearing dates with you both and have received evidence.  In fact, there were three, I received brief evidence this morning.  There were no other witnesses.  There was a witness advanced, however, I received a written summary of the evidence that she would give, and I was satisfied to receive that evidence in that way.

1. The hearing was conducted with the assistance of an interpreter in the Nepalese and English languages who has been of assistance at various times.  I note that a subclass 602 medical treatment visa is for persons seeking in your case to remain in Australia temporarily for medical treatment or related purposes.  When I consider your intention subjectively, I consider that you are seeking to remain in Australia for the purpose of medical treatment or for related purposes.  And again, I highlight that I am considering that subjectively from your perspectives.  The issue really is whether you are seeking to remain in Australia only temporarily and I will have more to say about that at a later point.

1. The next aspects are the medical treatment requirements met.  Clause 602.212 requires an applicant to mete one of the seven alternative sub criteria in clause 602.212(2) to (8).  These relate to the basis for which the stay or remaining in Australia is required.  Relevantly clause 602.212(2) relates to an applicant seeking to obtain medical treatment other than for the purpose of surrogate motherhood.  Well, clearly surrogate motherhood is not a circumstance for you, it is not relevant to you.

1. Broadly speaking it requires that the arrangements for the treatments you are seeking have been concluded.  It requires that if the treatment is an organ transplant certain circumstances exist.  Well, your treatment is not an organ transplant.  You must be free of a disease or a condition that may be a threat to public health or danger to the Australian community.  There are no indications of that.

1. The arrangements for payments of all costs and expenses associated with the treatment and the stay must have been concluded. And the 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 are no suggestions that any of the other alternative sub criteria are relevant.

1. Going through that I am generally satisfied that the arrangements for treatment for your neck or back issues to the extent that you are seeking treatment have been concluded through your liaison and bookings with a physiotherapist in Melbourne.  I accept that you have made approaches to a pain group or a pain clinic in Melbourne and that you have attempted to make arrangements for treatment.  So, I am satisfied about that.

1. You tell me that the payments or arrangements of payments of all costs and expenses have been concluded.  They have been paid for by your husband who you tell me is working.  I have no reason to doubt that, I accept that the arrangements for payments and costs and expenses associated with your treatment are concluded.  I am satisfied that payment of costs will not be a charge on a government or a public authority in Australia.

1. There is no evidence that any relevant government authority has approved payment.  There are no suggestions that any of the other alternative sub criteria are relevant in this case.  So, I am satisfied that the requirements of clause 602.212(2) are satisfied.

1. The next aspect is whether you are unfit to depart Australia.  Clause 602.212 requires you, [the applicant wife], to meet one of the seven alternative sub criteria in clause 602.212(2) to (8) and these relate to the basis for which the stay in Australia is required.  Relevantly clause 602.212(6) relates to an applicant being medically unfit to depart Australia.  It requires an applicant is in Australia.  Well, you obviously are.  You must have turned 50.  You have not turned 50.  You must have applied for a permanent visa in Australia and appear to have met all the criteria for the visa other than the health criteria but have been refused the visa.  Well, that does not apply to your circumstances.

1. And in addition, you must be medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a medical officer of the Commonwealth.  That does not apply to your circumstances, [the applicant wife’s name].

1. There is no suggestion that any of the other alternative sub criteria are relevant to this case.  It follows from my assessment that the requirements in clause 602.212(6) are not met.  And what that means is you are not unfit to depart Australia.

1. Clause 602.214 requires that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if this visa were granted.  This requirement will not apply if you are medically unfit to depart Australia.  Well, you are not medically unfit to depart Australia.

1. I am satisfied that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa were granted.  I'm satisfied clause 602.214 is met.

1. Now, a further question is will you or do you, [the applicant wife], have access to or adequate means of support.  Clause 602.216 requires an applicant to have adequate means or access to adequate means to support themselves during the period of the intended stay in Australia.  This requirement will not apply if an applicant is medically unfit to depart Australia.  Well, you are not medically unfit to depart Australia.

1. But I am satisfied that you will have access and do have access to adequate means of support.  You have been married to your husband for quite some time now and you have a child together.  I note that you have attempted to have further children but that has not occurred as of yet.  I am satisfied that he does provide you with the level of support that one would expect in a functioning marriage.  So, you do have access to adequate means of support.

1. So really that leaves one criterion that is particularly relevant to your circumstances, [the applicant wife], and that is whether you have a genuine intention to stay temporarily for the visa purpose.  Clause 602.215 requires that an applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  And I 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 the conditions to which the subclass 602 visa would be subject and any other relevant matter.

1. This requirement would not apply if you are medically unfit to depart Australia.  Well, as I have said numerous times, you are not medically unfit to depart Australia.  It is this criteria, the genuine intention, that this decision rides upon.

1. Now, it is necessary that I go through in much detail the documents and evidence that were provided for the purpose of the tribunal hearing.  I should say that records that I have viewed indicate that neither you, [the applicant wife’s name], or your husband have returned to your home country Nepal since [May] 2009.  And I see no indications of any significant visits by family members during that period of time.  That is something that I must give careful consideration to because, of course, I am trying to determine your intentions, your genuine intentions to depart Australia following the treatment, if this visa were to be granted.

1. The fact that you have been onshore since [June] 2009, which is a period of over 12 years now, is in my view indicative of a strong intention to commit your lives to Australia but that is not the end of the story.

1. On 29 March this year the tribunal sent you a stock standard letter.  Your matters had gone through processing over quite a period of time and by 29 March they were ready for hearing.  So, on 29 March there was a letter, it was titled “Invitation to provide information”.  I will not read out the entire letter but you were invited to provide information in writing being copies of all medical reports, referrals and opinions brought into existence from the date of the Department’s decision, the delegate’s decision on 3 April 2019 relating to your medical visa application.  The information should be received by 12 October 2021.  I must say also I have viewed the materials in the Department file in preparing for this hearing.

1. The reason for the letter is to ensure the tribunal has all relevant documents and information that may be relevant to making its own decision in addition to what the Department had.  The first document of particular note for me was some test results that were performed.  I will just clarify, there were some test results that were provided in relation to [the applicant husband] that I have seen.  They were collected on 12 February 2020.  They appear to relate to heart related issues but there were also blood tests.  Now, I take those into consideration but, of course, I am dealing with the primary application, which is of [the applicant wife].  So, I do note those records.

1. The first medical records go back as far as 27 June 2016.  Now, they were an MRI and an MRA of [the applicant wife’s] brain.  I will read from the conclusion.  There was a single small abnormal single focus demonstrated at the subcortical location of the left frontal lobe medially.  This was a non-specific finding.  There was no further focal intracranial abnormality seen.  There was no focal abnormality demonstrated at the origin of the trigeminal nerve nor its major divisions.  There was a normal MRA study of the intracranial circulation.  There were no other further significant findings.

1. The next day there were similar tests being 28 June 2016 on the lumbar spine.  The findings were normal lumbar lordosis demonstrated.  There was no focal marrow signal or abnormality identified.  There was a posterior annular tear at the L3-L4 and L4-L5 levels.  There was no defect or spondylolisthesis noted.  The conclusion was that there was mild to moderate central canal stenosis seen at the L3-L4 level with a mild central canal stenosis seen at L4-L5.  There was slight impingement to the traversing L4 and particularly L5 nerve roots identified.  There was no significant foraminal stenosis demonstrated.  There were posterior annular tears seen at the L3-L4 and L4-L5 levels, which can be associated with discogenic pain.  There was no pars defect spondylolisthesis.

1. So that was on 27 June 2016.  The next document provided was two years later and that was a CT brain scan of 31 May 2018.  I am reading from it.  CT of the brain on 31 May 2018.  You had been feeling numb on the left side of your body for about one month.  There was no history of chest pain, palpitation or SOB being shortness of breath I would think.  There was no intracranial haemorrhage or collection.  There was normal grey white matter.  Differentiation preserved.  Everything else was normal.

1. So, it appears from that scan there were no particular issues.  And I must say the earlier MRI and MRA whilst indicating some degree of issue they were not indicated as being particularly concerning or serious.

1. The next evidence was a breast ultrasound 3 August 2018, which was about nine weeks later than the CT brain scan.  I note that is nearly three years ago.  Actually, it is over three years ago now.  I am happy to see that notwithstanding you had a four-millimetre cyst of the left breast there were no further significant findings and it was benign.  So, there was also a cervical spine X-ray because you had neck pain radiating to your left arm.  There was normal cervical lordosis.  There was mild to moderate cervical spondylosis.  There was no destructive bony change or bony cervical rib demonstrated.  There was moderate C3-C4 level foraminal stenosis.

1. So, there were degenerative changes but there was nothing to indicate there were any aspects that were considered serious from those test results and I take that into consideration.

1. There was then what I would say are broad spectrum tests, which were collected on 21 January 2019.  I am not going to go into those in any particular detail but what I can say is things such as your glucose was normal, haematology you had mild leukopenia, which is low white cell count, at that time.  You had a low iron count at the time.  Your lipids were acceptable.  There was multiple biochem analysis, which was all acceptable.  Your vitamin D was acceptable.  Your cardio was normal.  Your haematology in general there were no issues and you had a normal thyroid.

1. And there was no evidence of treatments being sought at or about that point up until 12 November 2019.  Around 12 November 2019 you had further significant bloods analysed, which were collected on that same day.  Your red and white cells and your platelets were normal.  So back in January you had a low white cell count, but it seems by November 2019 that was normal.  Your glucose was normal.  Your cholesterol was okay.  Your general biochemistry was okay.  And your thyroid was normal.  I take that into consideration.

1. And I am happy to say that on 25 November 2019 you had a normal breast scan result also.  You had cervical screening on 10 February 2020 and that was all normal.  In fact, you were advised or the recommendation was that you be screened in five years’ time from there, so in 2025.

1. There was prolactin testing conducted on 21 February 2020, that was normal.  I note the prolactin is a hormone relating to health of the breast in women.  You had no STI also.  And I also note there was evidence through all of this of any particular treatments being sought or required.

1. I note a letter addressed to [Doctor A] dated 19 February 2020.  She practices at [Health Service 1] in [Suburb 1].  Cervical screening was low risk.  Rescreen in five years.  So up until that point February 2020 there was no evidence of any physiotherapies, pain counselling or pain medications being required.  I note some further testing hormone studies 21 February 2020, which appear to be in range.

1. So, as I have said, the tribunal started working on your matter in a major way in readying for hearing around about 29 March 2021 when you were notified by letter.  And I note that it was only two weeks later on 16 April 2021 your doctor [Doctor A] addressed a letter to the Department of Immigration.  I accept that she was intending it to come the tribunal in particular to me.  The letter relates to you, [the applicant wife].  Its purpose is to let the tribunal know that she had seen you today being 16 April 2021 with pain and numbness from your spinal canal stenosis and that she was treating you with physiotherapy and pain clinic.

1. The spinal canal stenosis is at the lumbar L3-L4 and the L4-L5, it is mild with nerve root irritation.  You were being treated with an antidepressant at that time.  I note from that that there is very little detail about your conditions and the reference to your conditions being only mild with irritation of the nerve.

1. I also note that there was correspondence of 30 April 2021 between you and the tribunal in which you both consented to the hearing and the review occurring together, which made sense in the circumstances.  The first hearing was on 29 June.  I have listened to that recording in preparing for today’s hearing and also for this decision.

1. Following that hearing there were several aspects that I needed clarifying or I needed further information upon.  The tribunal wrote to you on 29 June requesting further information, it was addressed to both of you.  I am reading from the letter:

   Further to the tribunal hearing on 29 June 2021 the Member requests you to provide the following information.  Please provide documents or information evidencing dates of all consultations with [Doctor A] of [Health Service 1].

2. The reason for that was that the information provided to that point, as I have already mentioned, was very sparse about how much interaction you'd had with [Doctor A], the reasons and the outcomes.  The letter also required:

   Please provide a copy of any treatment plans for your ongoing medical treatments discussed with [Doctor A].

3. The reason being that a formal treatment plan suggests a degree of planning and thought into what is required for your improvement and recovery, which is something that would be relevant to me.  The letter also indicated:

   Please provide documents or information evidencing your actual attendances at pain group meetings.

4. Because you had mentioned about pain group meetings in your evidence to me on 29 June.  I wanted to see some evidence of that.  I also asked:

   Please provide documents or information evidencing your physio sessions to date.

5. And that the tribunal would be assisted from being provided with notes of the physiotherapy treatment and the future therapy plan.  And again, the reason that was sought is that it would tend to suggest to me that there was an agreed strategy or a plan in place for how you were going to get better and improve.

1. The letter asked if you could confirm if further scans or X-rays had been scheduled by your treating practitioners for your condition and, if so, the arrangements for same.  Finally, during the hearing held on 29 June 2021 you expressed the view that you could not expect to receive the same quality of medical treatment in your home country of Nepal.  I wanted to know why it was you held that view and I asked that you provide any information upon which you held that view.  I sought a response by 27 July, so that was a month by which you were to respond.

1. On 29 June, that same day, there was a further invitation sent to you to appear at the next hearing date and the next hearing date was 5 August 2021.  I have listened to the evidence that you gave on that day and have considered that in making this decision.

1. You had nominated a possible witness for the hearing.  That person’s name was [Ms A] being a resident of [address].  I received a letter, which is signed, on 26 July 2021.  In that letter she says she is writing the letter to tell you, being me, that she knows [the applicant wife] very well and that since February 2014 that she had been helping you financially when you have been in difficult times.

1. She advises it is true that you are suffering from depression and left side pain and numbness and for a long time.

   Dear officer, if you would like to further inquire, please don't hesitate to contact me.

   Well, I accept the things that she has put in that letter, so there was no need for me to contact her at all, that is why I did not contact her.

   On 29 July 2021 the tribunal again wrote to you as follows:

   The presiding Member -

   Being me:

   - had noted that you had not provided the documents or information as requested by the tribunal on 29 June.  The Member requested the production of these materials because based upon your own evidence the materials should have been reasonably available to you and they were considered to be materially relevant.  The Member noted that none of the requested documents had been produced.

2. The letter indicated it would be appreciated if the materials were provided to the tribunal by midday on Wednesday, 4 August 2021.  Of course, the hearing was to be held on the 5th.  This would enable the tribunal to consider the material prior to the hearing.

   Further, the effect of your earlier evidence to the tribunal was that you had attended a pain relief group on 24 June 2021, however, you have produced no evidence verifying this.  Additionally, you had also given evidence to the effect that you had consulted a physiotherapist at [Health Service 1] in [Suburb 1] and your most recent appointment had been about two weeks prior to 29 June.  These are things that should be able to be verified by the providers of these services.  Could you also provide that information by midday on Wednesday, 4 August 2021?

3. Now, on Tuesday, 3 August an email was sent indirectly but was eventually sent to the tribunal, it included an email dated 29 July 2021 from [Agency 1] in [Suburb 1].  That indicated that you had been booked in to attend the [Agency 1] program at [Health Service 1] [Suburb 1].  This is a small group program with a maximum of 10 participants.  The program goes for three hours twice a week for four weeks.

1. It confirmed that you are booked into sessions being from 10 August through to 2 September eight sessions all up.  It gives the address of the sessions.  Now, you tell me that to date you have not attended, physically attended any pain sessions with that group.  In fact, you had booked from 6 July to 29 July and then from there through to 2 September.  You gave reasons for why you have not attended and that mainly relates to the situation in Melbourne, Victoria in relation to COVID-19.

1. You provided information about your physiotherapy.  There is a letter from your physiotherapist, which I have viewed.  There is a letter dated 2 August 2021 from [Physiotherapist A], that you had been attending physiotherapy at [Health Service 1] for management of your arm and neck pain.  You had attended for treatment on the following dates, 7 June and 23 June, 12 July and 26 July 2021.

1. There is also another letter from [Physiotherapist A], that is dated 18 August 2021.  The letter indicates that you had been attending due to persistent pain and weakness in your left upper and lower limb which were attained by a fall three years ago.  I note that there is no evidence of that particular fall other than your evidence before me.

1. Due to the recent COVID lockdowns your care had been sporadic.  You had been enrolled in a chronic pain management program at [Health Service 1], which has been delayed multiple times due to lockdown.  These programs are not considered immediately essential according to the public health guidelines hence they continue to be delayed.

   [The applicant wife] is hopefully to be enrolled in the September or October programs.  In the meanwhile [she] has been participating in an active recovery program of exercise, strength and stretching for your left arm pain, your dizziness and your neck pain with period assessment and progression of exercise onsite at [Health Service 1].

   It is anticipated that your physio care would go to at least October or November 2021, which is roughly now.

   While some recovery in pain and functioning can be expected at this time a clear prognosis is not able to be provided.

2. I take that into consideration.  There were some notes also provided.  More recent correspondence from your doctor.  23 July 2021 again to the Department of Immigration confirming that [Doctor A] is your treating doctor.  You have spinal canal stenosis, left shoulder impingement, that you need ongoing physiotherapy for the next 12 months.  Well, that does not accord with what [Physiotherapist A] appears to be saying in his letter.  I tend to accept what he is saying.  That letter really does not provide me with any further information than what she had already provided back in April 2016.

1. There are doctor’s notes, which I have considered.  These appear to be [Doctor A’s] notes.  It seems for some period of time you were attempting to become pregnant.  Of particular relevance were notes of [Doctor A] of 7 April 2020, these were consultation notes.  The notes indicate that you have secondary infertility.  You had conceived your first daughter now [age] with no issues.

1. And interestingly to me the notes indicate that you are fit and that you are well, that you are exercising regularly through walking.  You eat a healthy diet.  Your BMI is 30 but you had put on 18 kilos since your last pregnancy.  So, it appears this relates to infertility treatments.  But I note that at that point in time being only a year or so ago you were deemed to be fit and healthy at that particular time.

1. All right, of course, you were given a notice to attend at the hearing today and you did so and I received some brief evidence from you today.  In your evidence today you indicated that there was no new evidence to present as from the last hearing date on 5 August 2021.

1. You had, however, had a further ultrasound on 27 August but for various reasons you decided not to forward that information to the tribunal.  You had the ultrasound because you had tenderness in your neck and your arms.  You were told that you could be given an injection of steroid to help with that.  You had not had the injection as yet.  You can't go to that clinic as yet.

1. You had a discharge issue.  You had seen somebody on 18 October 2021, that was treated with something called Canasten, that was through [Doctor A].  You believe your conditions are now to some extent better and the numbness is improving and you are doing your exercises as recommended.

1. I then raised this issue about whether you could expect to obtain some level of support for your pain management and your ongoing conditions in Nepal.  You had talked to a friend, you believe that there is a possibility you could obtain physiotherapy but that would be expensive.  You were not sure about pain management in Nepal.  I raised with you that online I had found numerous references to pain specialists or pain clinics in Nepal, particularly in the Kathmandu area.  You accepted that you thought you could potentially access those services.

1. That said though you were concerned whether you would have the finances available to you to access those services, if you return.  The money situation at the moment is not good.  You would not have a house to return to.  Your parents are both now retired.  You also made the point that your home area or village is several hours away from Kathmandu, that would require a bus trip.

1. You made it clear to me that there is no suggestion at this point in time that you will need surgery for your conditions.  Your doctors had told you that you are, and I am happy to say this, you are getting better and that you do not need to have surgery.

1. I asked how many physio appointments you had had since we last spoke on 5 August.  You had two appointments, one was on 9 August but that was not face to face.  And there was another you are not sure of the exact date.  You were given online exercises to do through the email.  You are not sure when the next face to face appointment will be.  The pain management group you have not actually attended, physically attended any of the groups now and you tell me that’s because of issues with COVID.  But I do note that you have booked into appointments.

1. In finishing off you were contrite with me about the fact that you were unlawful, both of you were unlawful non-citizens for a significant period of time but the circumstances you then faced were very difficult.

1. I then spoke to [the applicant husband], particularly about the basis for his application.  He told me that he does support you, he takes care of you, he looks after you when you are not feeling well.  He funds your treatment.  He stays with you physically, he cooks you meals, and that you are not in good health.  And that you both want a bit more time in Australia and for him to be able to gain more income to enable your return.

1. So that was the sum total of all of the oral evidence received.  Now, there was to be another hearing, that was on 3 September.  For reasons due to me I was about to commence four weeks of leave, it was not possible for me to go ahead on that date and hence we are here today.

1. On 3 September I wrote to both of you and the reason I did was for the following reasons. In conducting a review the tribunal was required by the Migration Act to invite applicants such as yourselves to comment on or respond to certain information which the tribunal considers would subject to your comments or responses be the reason or a part of the reason for affirming the decision under review.

1. It was indicated that “We had not made up our mind about that information”.  Now, the information was as follows, it was contained within a decision record of the previous Refugee Review Tribunal.  The decision was dated 4 April 2012, the case number was 1200349.  It was a protection visa application for both of you.  Your application to review decisions of the delegate back then.

1. I provided a copy of that decision to the letter.  The information may be found at paragraphs 27 onwards.  The information was to the following effect.  On 25 July 2011 you and your husband had applied to the Department for the granting of protection visas.  Within the application the following claims had been made.  You did not think you will ever need authorities in Nepal to protect you as you had lodged the protection visa application because your student visa being yours, [the applicant wife’s name], was cancelled and your consequent appeal application against that decision was invalid.  Now, I know it was invalid because it was out of time.

1. The other information was that you had become an unlawful non-citizen since December 2010.  The further information was that you had consulted your lawyer at around the time of applying for the protection visas who had advised you there were no reasonable grounds for you to obtain protection visas.

1. The further information was that you fully understood the protection application would be refused, which it eventually was.  But you believed that the extra time gained during processing would enable you to complete unfinished studies.  You fully understand the applications would be refused in due course.

1. At the subsequent tribunal hearing your migration agent advised the tribunal that it was the first time he had heard several of your claims before the tribunal.  At question 46 of your protection visa application you had stated the following:

   To be one hundred per cent honest I don't think I will ever need authorities of Nepal to protect me if I were to go back.  I'm reluctant to go back because there is no hope to develop my career.

   You subsequently appealed to the Federal Court of Australia seeking extension of time by which the review decision of the tribunal decision.  The presiding judge his Honour Farrell J within a decision to dismiss your application for appeal noted that:

   Non-appearance has been a common feature of the applicant’s dealings with the Federal Court of Australia and they did not appear in relation to an application for an extension of time to review a decision of the tribunal made six years after that decision was made.

2. Considered cumulatively I considered that this information suggested or had the tendency to suggest that you have pursued claims for seeking the protection of Australia for ulterior motives being to enable you to continue your studies and/or maintain ongoing residence here in Australia.  Your student visa had, of course, been cancelled.

1. If accepted by the tribunal the information or aspects of it would be the reason or part of the reason for affirming the decisions under review because the information casts doubt upon your true motivations for seeking protection and subsequent tribunal review at first instance.  But also with respect to the genuineness of your current application for review of the decision to refuse the medical visas.  More specifically the information suggests or has the tendency to suggest that you do not genuinely intend to stay only temporarily in Australia.

1. You were invited to give comments on or respond to that information in writing.  Your comments or responses should be received by 29 September 2021.  You were advised that you could seek an extension of time.  And as I have said, that decision of Farrell J was also provided or the orders or the reasons for judgment as was the Refugee Review Tribunal decision from 4 April 2012.  So, in essence you were being put on notice that the tribunal was concerned about aspects of your case.

1. You did respond, you responded on 14 September 2021, an email addressed to the tribunal.  It was from your email address, [the applicant wife].

   Dear officer, first of all thank you for giving the opportunity to give comments on my situation.  According to the email dated 3 September 2021 I clearly understand that I applied for the protection visa since 2010 to 2016 I was unlawful and then I went to the Federal Court.  Unfortunately, none of them succeeded.

   Dear officer, I overstayed more than five years.  According to law I was wrongful.  However, in my life some unpredictable incidents happened.  In the beginning when we came to Australia everything was going smoothly.  I had finished my first semester at [College 1], then I changed my college to [another college].  I was studying properly and my attendance was accurate.  In fact, I was a decent student.  At the same time my previous college sent to immigration that my attendance at [College 1] was low.  After that they cancelled my visa.

   Simultaneously, on the end of 2010 my mother-in-law expired, then after four years my father-in-law passed away.  In [year] we had a daughter and after that we were desperately suffering physical, mental and economically.  After that I was put on antidepressant Escitalopram.  Due to financial problems I could not get regular treatments.

   Though I was facing up and downs last year lockdown 2020 my husband had badly suffered from anxiety and panic attacks.  We have been emergency a couple of times and done a couple of tests.  That was expensive.  Because of that I could not continue my treatment regularly, which I have mentioned.  I would like to request to you why my visa needs to be granted.  At the moment everywhere in the world is suffering from COVID especially developing countries like mine is a disaster, so there is no hope for a start of life in this situation.

   My treatment is going on.  If we go back without completing treatment it might not get proper medical treatment which I am getting here.  My parents are looking after me over the years, now they are aged so they are not able to help us.  We understand that we were unlawful almost more than five years but we are not bad people for society.

2. And I accept that response from you.  I raised with you some information that I obtained from the Internet, that is that there are pain clinics in Nepal but particular in the capital city of Kathmandu.  I accept Kathmandu is not next door to where you come from but nevertheless I think it reasonably open that you would be able to obtain some treatment or access some treatment.  The key issue, of course, is the level to which you can afford that treatment.  You can afford treatment here in Australia, you have told me that.  Your husband has been able to provide for you.  I accept that it will be more difficult for you to access treatment in Nepal but it is not beyond possible for you to do so.

1. There are physiotherapists who operate in Nepal also and for the same reasons I believe that you would be able to access the services of a physiotherapist should you need so. I have to put into perspective where you are currently at with your treatments.  You tell me that you are improving.  Your mobility is improving.  Generally, you are improving.  Your doctors are saying that you are improving.  I do not sense that if you finish your treatments here in Australia that you will go backwards to any significant degree.  I note that the purpose of the physiotherapy is to some extent to educate you on exercises that you can do to help with your mobility and improve your situation.  I understand you are doing those things and that you are getting some improvements.  I note that your physiotherapist indicates that your treatment plan to date is up to about October or November.  It is not 12 months as suggested by [Doctor A].

1. I do accept and I readily accept that you have somehow injured yourself some years ago.  How you did that is not entirely clear to me but I do not consider that you are making that up.  I do not think that is true, I think you genuinely have some degree of injury that does cause you pain, that has caused you some degree of numbness over time.  And there is pain and I can accept that it is concerning for you.

1. But I note that you are not taking or not taking on any regular basis any significant pain medications and that you are trying to resolve that through other means and to your credit.

1. My role is to weigh everything up and I have to assess everything that is before me.  As I have said, I do accept that you are seeking medical treatment in Australia, I accept that.  And that you are seeking to remain in Australia for the medical treatment and for related purposes.  The issue really is are you seeking to remain in Australia temporarily.

1. When I look at your circumstances considered individually and cumulatively you have been in Australia for over 12 years now.  You have settled I believe into life in Australia, that is evidenced to some extent by the fact you have not returned to your home country.  There is no evidence or little evidence of any family spending time here in Australia with you.  I think it is a reasonable inference open that whilst you are not estranged from your family your focus is not on Nepal, your focus is here in Australia.

1. I cannot distance myself from your migration history, that concerns me.  The fact that you were unlawful non-citizens although some time ago now is very concerning because that indicates to me at a period of time you disregarded Australia's migration conditions and requirements for your own means.  I am not being critical of you personally, but you clearly put ahead what you wish to do ahead of the law here in Australia.  You have challenged decisions all the way through.

1. When I weigh everything up, I am satisfied that you would be able to obtain, if not the same standard, some degree of adequate treatments and care back in your home country.  I acknowledge the effect and impact of COVID-19 in your home country.  I do know for a fact that Australian Immigration authorities will not force you to leave Australia, if there is any indication that you would be going into a situation of significant danger to your health.  I know that for fact, so it is not a case that you will be required to leave Australia in the next month or so or even longer.

1. So, when I take all those things into consideration and particularly the issue as to your genuine intention, I do not find that you genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.  I have had regard to whether you have complied substantially with conditions of the last held substantive visa or any subsequent bridging visa.  I have considered your intention to comply with the conditions to which the subclass 602 visa would be subject and other relevant matters.  So, it stands that you do not satisfy the genuine intention to stay temporarily requirement.

1. For that matter or for those matters based on the findings you, [the applicant wife], do not meet the requirements for the grant of the visa and the decision under review is affirmed.  It flows from that, [the applicant husband], that your application fails also because I do not accept that you are a person who will provide support to a person who is seeking medical treatment in Australia when considered the requirements of subclause 602.212(4).  And that is because it is not met because your wife does not hold a medical treatment visa in Australia and that is the reason for that.  So, it follows that both of your decisions will be affirmed.

END OF ORAL DECISION

Michael Judd
Member