1910356 (Migration)

[2021] AATA 3286

1910356 (Migration) [2021] AATA 3286 (1 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910356

MEMBER:David Crawshay

DATE:1 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 01 July 2021 at 3:33pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – applicant is suffering from psychological conditions – border restrictions – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Home Affairs on 8 April 2019 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 March 2019. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 8 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A], who is the applicant’s fiancé, as well as from Ms [B], who is one or her friends.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The purpose of the visa, as stated in the applicant’s Form 1507 dated 27 February 2019, is to receive ongoing psychology counselling in relation to severe anxiety and panic attacks”.

   Does the applicant satisfy the requirements of cl.602.215?

7. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In this case, the purpose for which the visa is granted is for the provision of medical treatment and specifically for psychological treatment in relation to anxiety and depression according to the “Application for a Medical Treatment visa”. 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 visas, 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).

   Is the applicant unfit to depart Australia?

8. Clause 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires, among other things, that the applicant has turned 50.

9. The applicant’s age, according to the date of birth on her passport, is [age], and the Tribunal accepts that she is [age] years of age. Given that one of the cumulative requirements under cl.602.212(6) is that the applicant has turned 50, cl.602.212(6) is not met. Because cl.602.212(6) is not met, the applicant does not meet the exception in cl.602.215(2) and must meet cl.602.215(1).

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

10. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa.

11. The Tribunal noted to the applicant at hearing that there were several instances of her applying for subsequent bridging E visas after the existing visas has expired. She said that she had been on bridging visas while she had a matter that was ongoing. She said that, during the appeal process for her student visa application, the Department had told her that her bridging visa would be ongoing as long as the process is ongoing.

12. The Tribunal has considered this evidence but notes that she has not breached conditions of these visas as they did not have condition 8531 attached to them. In the absence of this condition, and in the absence of evidence to show that she has not complied with the conditions placed on her bridging E visas, the Tribunal is satisfied that the applicant has complied with the conditions of her bridging visas. This evidence is given weight.

13. The Tribunal has considered if the applicant intends to comply with the conditions to which a Subclass 602 visa would be subject. As there is no evidence to show that she would satisfy cl.602.212(7), the Tribunal considers that conditions 8101 (“no work”) and 8201 (“no study for more than three months”) would be imposed on any Subclass 602 visa granted to her.

14. The Tribunal has considered that the applicant has previously complied with these or similar conditions when they were imposed on previous bridging visas. Although the applicant at hearing professed a desire to undertake further study and had previously applied for a student visa to complete post-graduate study, it is satisfied that she would comply with conditions 8101 and 8201. This evidence is given some weight.

15. The Tribunal has lastly considered any other relevant matter.

16. The Tribunal has considered the purpose of the visa, being to receive treatment for anxiety and panic attacks. It has considered evidence on the Department and Tribunal files in relation to these and other conditions. It has considered that the applicant requested in her application form a period of treatment from 26 March 2019 until 1 January 2020 and that this period of time has elapsed. However, it has considered that she claimed at hearing to have lost contact with her treating psychologist and to have only recently resumed sessions with her. A letter from the applicant’s psychologist dated 22 May 2021 stated that the psychologist intends to undertake cognitive behavioural therapy with the applicant. No timeframe has been given for the treatment although the letter suggested the applicant be given three months to “actively re-engage in CBT and regular psychological counselling sessions” to manage her symptoms and reactions prior to meetings with “Immigration”. The letter stated further that if the time were granted, the applicant “can work in psychological treatment to best manage her symptoms and re-engage in the process as she is required to do so”. Based on this evidence, the Tribunal considers that the applicant requires a period of around three months for the stated treatment.

17. The Tribunal has considered that the applicant lives with her whole immediate family in Australia, being her parents and a brother, while she claims to have aunts, uncles and cousins living in Egypt. It has considered that this would ordinarily provide a great incentive for her to remain in Australia and is given weight.

18. The Tribunal has considered the applicant’s claim to have a fiancé, Mr [A], living in [Country 1], with whom she became engaged in August 2019. It has considered documentary evidence as well as testimony at hearing that he has operated and continues to operate businesses in Egypt and [Country 1], the newest being [a] store in

    
    

    [Country 1] which he has only recently set up. It has considered that he has the right to reside in Egypt and [Country 1]. It assumes that he would have little trouble in travelling to Australia on an Electronic Travel Authority visa or eVisitor visa in normal circumstances given that [Country 1] passport-holders are eligible for both visas. It accepts that he has travelled to Australia in the past and appears not to have encountered problems in doing so. It has considered that he has left Australia within the validity of his previous visas.

19. The Tribunal has considered evidence, both documentary and in the form of testimony from the applicant and Mr [A], that they own or at least are entitled to live in a property just outside of Cairo. It accepts based on the evidence that they own or have such entitlement. Although the Tribunal did not question the applicant or Mr [A] on this at hearing, it accepts that they would have a place to stay in [Country 1].

20. The Tribunal has considered the above evidence about the applicant’s relationship with

    
    

    Mr [A] and accepts that it would provide an inducement for her to leave Australia. This matter is accorded weight.

21. The Tribunal has considered the political and security situation in Egypt. In doing so, it notes that the applicant told it at hearing that she had been a secondary applicant to a previous protection visa application made by her father as primary applicant, that this application was for reasons to do with the ascendancy of the Muslim Brotherhood in Egypt, and that he had mentioned as part of the protection visa process an incident involving the applicant (described by her at hearing as a sexual harassment). The applicant said that the political situation has changed in Egypt insofar as the Muslim Brotherhood had been overthrown and were no longer ruling Egypt. Later in the hearing, Mr [A] told the Tribunal that the situation had taken a “180 degree” turn – whereas in the past nobody was safe from the Muslim Brotherhood regime where people were harassed on the streets, this changed when the military took over and the safety of people had improved.

22. The Tribunal has had regard to the country information on Egypt in coming to its findings. It finds that, whatever the merits of the applicant’s family claim to have required protection at the time of applying for the relevant visa, the applicant and her family would not experience discrimination or harassment in Egypt under the current al-Sisi regime which is due to rule until at least June 2022 when presidential elections are due to take place. The Tribunal finds that the political and security situation in Egypt would provide no inducement for the applicant to remain in Australia and is given no weight.

23. The Tribunal has considered that the applicant and Mr [A] wish to marry. In this regard, the applicant told the Tribunal at hearing that she needs her father for the marriage process, hence the reason why the marriage will take place in Australia and not in Egypt or elsewhere given that her father is here. Mr [A] said that within 10 days of the wedding ceremony he and the applicant would travel to Egypt and have a party in Cairo. Earlier in the hearing, the applicant said that when the parties travel to Egypt after their wedding they will begin the process for her residency in [Country 1] which she estimated would take around six to eight months. However, the Tribunal has also considered that Australia currently has very tight regulation of its borders which would affect Mr [A]’s ability to travel here to marry the applicant. He told the Tribunal at hearing that he has applied for an exemption to travel to Australia in order to be married to the applicant in the consulate in Sydney. The Tribunal has seen a screenshot showing that he applied for an eVisitor visa in October 2020.

24. The Tribunal has considered the rather complex situation the applicant finds herself in. It accepts based on evidence on the Department and Tribunal files and the testimony of the applicant, Mr [A] and Ms [B] (the applicant’s friend but importantly a registered mental health nurse) that the applicant is suffering from psychological conditions that include anxiety and depression. It accepts based on her testimony at hearing that these conditions appear to have been exacerbated, if not caused, by her inability to study or work and, at least since her engagement, by living separately from Mr [A]. In this regard, it has considered that there is little evidence to show that the “no work” and “no study” conditions placed on her past and present bridging visas will be waived in relation to future bridging visas. It accepts that she is engaged to Mr [A] and has been trying to get married to him but missed out on doing so in early 2020 because of the lockdowns associated with the COVID-19 pandemic. It accepts that she wishes to marry him in Sydney at the Egyptian consulate in the presence of her father, this being a cultural and religious requirement. It accepts that the couple plans to travel to Egypt together after their wedding to begin life there in a property outside of Cairo. It accepts that the applicant would essentially be unable to travel to Egypt by herself because of religious and cultural considerations, and that this was the reason she stated at hearing that she was unable to do so in 2018. It accepts that the couple wishes to seek residency in [Country 1] through a process that is claimed to take six-to-eight months, but this appears contingent on them getting married beforehand.

25. The Tribunal acknowledges that the applicant and Mr [A] appear to have a genuine plan to eventually relocate to either Egypt or [Country 1]. However, and as can be divined from the Tribunal’s findings above, the applicant is in somewhat of a state of limbo. She claims to be unable to travel outside of Australia until she is married, yet this marriage is contingent on Mr [A] being able to travel here to marry her – something that at the moment would only occur in the narrow case of him being granted an individual exemption.

    CONCLUSION

26. The Tribunal has carefully considered and weighed the above evidence and findings. It gives more weight to the presence of Mr [A] as an incentive for the applicant to leave Australia than it does to members of her family as an inducement to remain here. As above, it gives no weight to the political and security situation in Egypt as a reason for her to stay here as it finds the situation stable where it may have been more precarious in the past. It notes her adverse migration history but gives weight in her favour because she has complied with conditions of her previous bridging visas and intends to comply with conditions placed on this visa, if granted.

27. However, the Tribunal gives the greatest weight to evidence showing that the applicant is wishing to remain in Australia until she is able to marry Mr [A] and embark on the steps that will lead to the couple living overseas – which at the moment is an indefinite period of time based on Australia’s border restrictions and in the absence of evidence to show that an exemption would be granted for Mr [A] to travel here. It finds that these circumstances outweigh all other matters in the Tribunal’s consideration of whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, being to receive treatment for her psychological conditions.

28. The applicant therefore does not satisfy cl.602.215(1).

29. Because cl.602.215(1) is not met and because the exception in cl.602.215(2) does not apply, cl.602.215 is not met.

30. 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.

    REQUEST FOR REFERRAL

31. At the conclusion of the hearing, the Tribunal heard a request from the applicant seeking “ministerial exemption” for Mr [A] to visit Australia. By this, it takes the applicant to mean that she would like the Tribunal to grant or request the Department to grant an individual exemption for Mr [A] to travel based on claims of compassionate and compelling reasons.

32. While the Tribunal firmly believes such an exemption would assist the applicant to leave Australia in a timely manner given the unique circumstances of the matter, it considers that it has no ability whatsoever to grant such an exemption, which it understands is solely a function of the Commissioner of the Australian Border Force and decision-makers in the Department, and for which there appears to be no right of review.[1] Furthermore, it is not aware of any formal process for referring Mr [A]’s visitor visa application to the Commissioner or the Department for them to consider an exemption to travel as there is for, say, ministerial intervention.[2] In the absence of these actions, the best the Tribunal can do is to communicate the particulars of the applicant’s matter to the Department for its consideration via this decision, in the full knowledge that any decision to grant an exemption rests with the Department and/or the Commissioner.

    [1] Department of Home Affairs, “Travel restrictions and exemptions: Individual exemptions”, as at 26 June 2021.

    [2] For the avoidance of doubt, ministerial intervention was not sought by the applicant and the Tribunal will not make a referral although it remains open to the applicant to make her own request of the minister.

    DECISION

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

    David Crawshay
    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).