1924458 (Migration)

[2021] AATA 4169

1924458 (Migration) [2021] AATA 4169 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1924458

MEMBER:Nathan Goetz

DATE:30 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 30 September 2021 at 2:04pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – failure to comply with visa conditions – an unlawful non-citizen –adverse migration history – no evidence to show applicant is medically unfit to depart Australia – lack of compliance in the past – intention to stay permanently –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 359, 360

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 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant identifies as a [age]-year-old male citizen of Pakistan.

3. [In] December 2011 the applicant last arrived in Australia holding a [temporary] visa. On 17 December 2011 this visa ceased.

4. On 6 February 2012 the applicant applied for a protection visa. On 15 May 2012 a delegate refused to grant the protection visa. On 29 May 2012 the applicant applied to the Tribunal for review of the decision refusing to grant the protection visa. On 13 March 2013 the Tribunal affirmed the decision refusing to grant the protection visa in AAT [case]. [In] February 2014 the applicant lodged judicial review proceedings in the Federal Circuit Court against the decision of the Tribunal. [In] March 2015 the Federal Circuit Court dismissed the judicial review proceeding.

5. On 11 April 2017 the applicant applied for a medical treatment visa. On 21 April 2017 a delegate refused to grant the medical treatment visa. On 25 May 2017 the applicant applied to the Tribunal for review of the decision refusing to grant the medical treatment visa. On 31 May 2017 the Tribunal determined that it had no jurisdiction to review the decision in AAT [case]. On 4 August 2017 the applicant lodged judicial review proceedings in the Federal Circuit Court against the decision of the Tribunal. [In] November 2018 the Federal Circuit Court dismissed the judicial review proceeding. [In] November 2018 the applicant appealed to the Federal Court against the decision of the Federal Circuit Court. [In] July 2019 the Federal Court dismissed the appeal.

6. On 1 August 2019 the applicant applied for the medical treatment visa that is the subject of this decision record. 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). On 12 August 2019 the delegate refused to grant the medical treatment visa because the delegate was not satisfied that the applicant met cl.602.215 of the Regulations.

7. On 2 September 2019 the applicant applied to the Tribunal for review of the decision refusing to grant the applicant a medical treatment visa.

8. On 24 August 2021 the Tribunal wrote to the applicant for two reasons.

9. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing on 1 October 2021. The Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review because the Tribunal had considered the information it had and was unable to make a decision favourable to the applicant.

10. The second reason was to invite the applicant under s.359(2) of the Act to provide the Tribunal with information. The request for information is detailed later in this decision record. The applicant wrote to the Tribunal and requested further time to provide information. The Tribunal granted this request and made the due date for the information 14 September 2021, and the applicant provided information by that date.

11. On 8 September 2021 the Tribunal wrote to the applicant and advised him that the Tribunal hearing had been abridged to 29 September 2021.

12. On 30 September 2021 the applicant appeared at the Tribunal hearing by telephone. The Tribunal was satisfied that a telephone hearing was appropriate given the COVID-19 pandemic.

13. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Pashtu languages.

    CRITERIA FOR THE VISA

14. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

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

15. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

16. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter.

17. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6) which requires that an applicant:

    ·is in Australia

    ·has turned 50

    ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

    ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

    CONSIDERATION OF CLAIMS

    Visa application form

18. The applicant wrote that the purpose of his stay in Australia was medical treatment or consultation. The applicant will fund his own stay in Australia.

19. He will be under medical care in Australia from [August] 2019 to [November] 2019. Asked to detail his medical treatment, the applicant wrote that he has been suffering from depression, anxiety and stress and directed the reader to the attached Form 1507. The applicant wrote that he would provide an estimate of cost for this treatment later.

20. The medical treatment will be provided by [Dr A] of [a] Medical Centre, [New South Wales]. This medical practitioner completed the attached Form 1507 where the condition requiring medical treatment was described as depression, anxiety and stress.

21. The treatment was detailed as counselling with psychologist and Lexapro medication.

    Delegate decision record

22. The delegate listed the applicant’s migration history as detailed with corrections in this decision record. The delegate also detailed that the applicant had been an unlawful non-citizen in Australia for approximately two months.

    Review application

23. As noted previously, the Tribunal wrote to the applicant on 24 August 2021 to request information. The Tribunal asked for information to address the following:

    ·     In your medical treatment application form you indicated that you wished to remain in Australia from [August] 2019 until  [November] 2019, but the records demonstrate that you have remained in Australia since that time. Why have you remained in Australia since  [November] 2019?

    ·     Your migration history demonstrates that you have never left Australia since your initial arrival. Why have you never departed Australia since your initial arrival in Australia?

    ·     In your medical treatment application form you indicated that you were seeking treatment from [Dr A] of [a] Medical Centre and that you have been suffering for anxiety, depression and stress. You are requested to provide the Tribunal with a medical report detailing all of your treatment, when that treatment commenced, your medical diagnosis, the basis of any diagnosis and prognosis of your medical conditions.

    ·     In your medical treatment application, you provided a copy of your Pakistan passport which has now expired. You are directed to provide a copy of a valid Pakistani passport or if you do not have one, explain why you do not have a valid Pakistan passport.

24. On 14 September 2021 the applicant provided a Health Summary Sheet from [Dr A]. The health summary detailed the applicant’s current medications (which totalled four) and his ‘current active problems’ being ‘anxiety-generalised in 2021 and ‘depression’ in 2021. [Dr A] also provided a medical certificate from an examination on 12 September 2021 where [Dr A] wrote that the applicant continues to suffer with severe depression and anxiety and is prescribed daily medication for these conditions. Copies of prescriptions were attached, as was a report from [an imaging centre] which was the result of a request of [Dr A] for [medical conditions].

25. The applicant also wrote that ‘as you requested for my new Pakistani passport for getting passport Valid Pakistani ID card is required my ID card was expired too so I applied for new ID card which is in process proof is attached below.’

26. On 30 September 2021 prior to the Tribunal hearing, the applicant provided a report from [Organisation 1] dated 29 September 2021. The report was authored by[a named person], who was identified as [an Organisation 1] DS counsellor. It provided a treatment summary for the applicant as follows:

27. “[The applicant] continued suffering ongoing physical and psychological health problems. He reports pain in his lower back discs and in his knees for which he continues taking pain relief tablets. Psychologically, he continues having his chronic symptoms indicative of anxiety, depression and trauma that are sustained by his ongoing fears about his Asylum Seekers situation causing him ongoing distress, which exacerbates when his case is to be reviewed.

28. The situation of his family in Pakistan also concerns him and exacerbates his symptoms. He reports that members of his family get frequently harassed by the people who threatened him and had leave Pakistan as a result.

29. His symptoms include sleep disturbances, feeling lethargic, feeling irritable and easily having outbursts of anger affecting his relationship with his friends/housemates causing him isolating himself, feeling low self-esteem when he depends on charities from friends to sustain himself, hearing voices in his head and visual hallucinations.

30. His psychometric symptoms review utilising Hopkins Symptoms Checklist-25 had him scoring, Anxiety 2.70, and Depression 3.40, (the score is considered symptomatic if greater than 1.75 and total score is 4.00). His trauma symptoms score utilising Harvard Trauma Questionnaire was also symptomatic, with the score of 3.06, (the score is considered symptomatic if greater than 2.5, the total is of which is also 4.00).

31. Physically [the applicant] reports chronic joints and back disc problems with frequent pain. He had a surgical operation in the past for his back disc, however he continues having bad back pain and relies on strong pain killers to reduce the pain. He also reports having frequent GORD and digestive issues.

32. He currently take four types of medication to address his physical and psychological issues.

33. Supportive counselling provides [the applicant] space to vent about his situation with active listening and acknowledgement of his situation and validation of his feelings. Counselling also encourages him to resist his depression indicative symptoms of being lethargic by going out for walking and practice breathing relaxation to reduce his symptoms, improve his sleep and improve his overall wellbeing. These suggestions were with frequent psychoeducation to remind [the applicant] how stress and distress related to his unstable situation adversely affect his physical health and exacerbate his psychological symptoms.

34. Counselling to continue supporting [the applicant] with the focus on reducing his above psychological symptoms, which continue affecting and exacerbated by his physical health issues, both of which affect his ability to function normally in his day-to-day life.

35. [The applicant] engages well with counselling and is keen to follow the strategies suggested to improve his wellbeing. However, his efforts are compromised by the unstable protection situation he is in as well as by his worries for his family’s situation in Pakistan.”

    Discussion at Tribunal hearing

36. The applicant told the Tribunal that his father is deceased, and his mother is alive. She lives in Pakistan. He was one of six children but one of his siblings is deceased. His siblings reside in Pakistan. In Pakistan, he has a wife and three children.

37. He told the Tribunal that he is awaiting a new Pakistan Identification Card, and referred the Tribunal to the evidence that he had applied for this card. He told the Tribunal that this card is a requirement so he can be issued a new Pakistan passport to replace the passport that expired in [2021].

38. The applicant said he remained in Australia because his father had passed away, the applicant was depressed, had applied for protection and was not allowed to work. He had to borrow money from friends. He did not feel well and has suicidal thoughts but he has friends who support him. He has been taking depression tablets and does not feel well.

39. The Tribunal noted that in the applicant’s medical treatment visa application form he indicated that he would be under medical treatment in Australia until [November] 2019. The applicant said that he did not know English and another person had put this date in the visa application form without the applicant’s knowledge. The Tribunal asked the applicant when his medical treatment was going to be completed. The applicant said he did not know and he needed more time in Australia. He wants to be medically well and pay off outstanding debts to friends in Australia and his debts to the Australian Government. The applicant said he was asking for a 5-year medical treatment visa with work rights. Not working affected his mental health and he cannot financially his family in Pakistan if he cannot work in Australia. He noted his children cannot complete their university studies because the family cannot afford the fees. He is supposed to be supporting his family in Pakistan. He told the Tribunal he had not worked since 2016 after he had back surgery. He noted that prior to the COVID-19 pandemic he collected bottles and exchanged them at ‘return and earn machines’.

40. The applicant told the Tribunal that if he was sent back to Pakistan he would be killed by the Taliban because he had supported the Pakistan army. He cannot return to Pakistan because he does not feel safe there.

41. The applicant was asked about his future intentions once his medical treatment ceased. The applicant said he did not know what he would do. He said that doctors advised that if he was allowed to work in Australia this would help him and would mean he could support his family, but he does not know if he will be able to survive. He expressed a desire to do farm work once he is recovered. He noted that he takes tablets daily and has injections. At the end of his medical treatment, he would like to stay in Australia because if he returns to Pakistan he will be killed. Noting that his medical treatment consisted of medication, the Tribunal asked why he could not receive that medical treatment in Pakistan. The applicant responded that he was being supported in Australia and noted his protection claims.

42. The Tribunal noted that the applicant last arrived in Australia on [date] December 2011 and asked whether his intention upon arrival was to remain in Australia permanently. The applicant said that when he arrived in Australia he felt happy and secure. He preferred to remain in Australia and noted that he had friends who came to Australia with him who have been allowed to remain and bring their family to Australia, but he has not been allowed to do so. He is now sick and this is affecting his mental health. He wishes to stay in Australia and work. The Tribunal noted that as the applicant had applied for a protection visa this suggested that the applicant was unwilling to return to Pakistan and asked if this was the case. The applicant said yes.

43. Noting what the delegate decision record raised about the applicant’s total period as an unlawful non-citizen in Australia being almost two months, the Tribunal noted that this demonstrated a failure to comply with visa conditions, which the Tribunal needed to take into account when determining whether the applicant intends to stay temporarily in Australia for medical treatment. The Tribunal asked the applicant if he wanted to address this concern. The applicant noted that when he arrived in Australia, he went to seek asylum and apply for a visa, but there was no lawyer who could assist him due to the Christmas holidays. There may have been some days where he was unlawful but was not really his fault as he tried to regularise his migration status.

    FINDINGS AND REASONS

44. In the present case, the visa applicant seeks the visa for the purposes of medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212 of the Regulations.

45. The issue is this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment. The applicant is required to satisfy this clause because the applicant does not satisfy cl.602.212(6). The applicant does not meet cl.602.212(6) because the applicant has not reached 50 years of age.

46. Although the applicant has been an unlawful non-citizen in Australia for a total of two months, this appears to be an aggregate of various periods of smaller unlawfulness. It is not a large period of time following a decision to refuse to grant the applicant a visa, or a refusal of a court to grant relief. The migration history of the applicant demonstrates that he has lodged visa applications and initiated associated litigation promptly. The applicant’s period of unlawfulness neither indicates nor does not indicate an intention to remain in Australia temporarily for medical treatment.

47. The conditions to which the applicant’s medical treatment visa would be subject is governed by cl.602.6 of the Regulations. The conditions that would be imposed in the applicant’s circumstances depend on whether the applicant satisfies the financial hardship provisions as provided in cl.602.212(7) of the Regulations. If that is the case, then condition 8201 must be imposed per cl.602.211(1) of the Regulations. If that is not the case, then condition 8101 and 8201 must be imposed. Clause 602.612 of the Regulations also allows condition 8503 to be imposed. Those conditions are:

    8101The holder must not engage in work in Australia

    8201While in Australia, the holder must not engage, for more than 3 months, in any studies or training

    8503 The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

48. Whether the applicant would comply with the relevant conditions that would be imposed may be relevant when considering whether the applicant is genuinely intends to have medical treatment, or whether the applicant is merely using the medical treatment visa as a basis to remain in Australia and work, study, or lodge some other visa. The applicant’s intention to comply with whichever of the above conditions would be imposed on the medical treatment visa has no relevance in determining whether the applicant genuinely intends to stay temporarily in Australia.

49. To that end, when the Tribunal looks to consider the ‘conditions’ to which the medical treatment visa includes, it is implicit in that consideration that the Tribunal be satisfied that the applicant leave Australia at the conclusion of the medical treatment visa (or, if the treatment continues, to lodge another medical treatment visa). When the Tribunal considers all the circumstances of the applicant, it comes to the conclusion that the applicant would not abide by the requirement to depart Australia at the end of any medical treatment visa, and that any further lodgement of a medical treatment visa application by the applicant would be to achieve a purpose of remaining in Australia permanently. The Tribunal comes to this conclusion when it considers all the relevant matters of the applicant’s circumstances in Australia.

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

2. The Tribunal accepts that the applicant is medicated for depression and anxiety. The Tribunal accepts that the applicant is receiving counselling. The Tribunal accepts that the applicant has had physical ailments. However, just because the applicant has those medical conditions and is receiving treatment does not mean that the applicant intends to remain in Australia temporarily for that purpose.

3. The applicant’s migration history demonstrates an unwillingness to return to Pakistan. The applicant did not claim to the Tribunal that he would return to Pakistan at the end of any medical treatment visa. The applicant told the Tribunal that he would not return to Pakistan. The applicant claimed to fear harm in Pakistan and that he will be killed if he returns there.

4. It is impossible to suggest that the applicant intends to remain in Australia temporarily for the purpose of medical treatment. If the applicant’s medical conditions resolved and his treatment concluded, the applicant would not return to Pakistan. The Tribunal is satisfied that the applicant intends to remain permanently in Australia.

   CONCLUSON

5. For the reasons given above, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose of medical treatment.

6. Therefore, cl.602.215 is not satisfied.

   DECISION

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

   Nathan Goetz
   Member