2003698 (Migration)

[2022] AATA 1207

2003698 (Migration) [2022] AATA 1207 (4 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003698

MEMBER:Rosa Gagliardi

DATE:4 February 2022

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 4 February 2022 at 2:45pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 (Medical Treatment) – subjective fear of returning to Turkey – applicant is highly motivated to remain in Australia – adverse migration history – mental health conditions – Australian citizenship children – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 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 7 February 2020 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 10 December 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 he/she was not satisfied that the applicant genuinely intends to stay in Australia temporarily for the purpose of obtaining medical treatment as required per cl.602.215.

4. The applicant appeared before the Tribunal on 16 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6) 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.

9. The Departmental decision shows that the applicant was born in [year] and therefore he has not turned 50 years of age.  Moreover, the Tribunal has limited evidence before it that the applicant has also applied for a permanent visa in Australia and has met all the criteria for that visa, other than the health criteria, but has been refused the visa.  In addition, the Tribunal has little evidence before it that would point to the applicant being unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.  Given the above findings are cumulative, the requirements in cl.602.212(6) are not met and accordingly, the requirement in cl.602.215 does apply

10. In the present case the visa applicant seeks the visa for the purposes for treatment of depression and Post-Traumatic Stress Disorder (PTSD).  This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

    cl. 602.215

    (1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which
    the visa is granted, having regard to:
    (a) whether the applicant has complied substantially with the conditions to which the last
    substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
    (b) whether the applicant intends to comply with the conditions to which the Subclass 602
    visa would be subject; and
    (c) any other relevant matter.
    (2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

11. The Form 1507 indicates that the applicant had been reviewed by a psychiatrist and was on anti-depressants.  A General Practitioner also provided a medical report dated 18 August 2019, stating the applicant, “had unsuccessful marriage, divorced 5 months ago, he was slaved by his in-laws and wife, he was abused physically and psychologically for 14 months, he was asked to do unpaid jobs and to do kitchen work, he was not uncovering that as he was scared that he might be deported, he is stressed a lot now, has poor sleep, recalling the events of abuse everyday.  He needs to be protected as he does not feel himself very secured as further abuse is still expected, he cannot go back as her relatives are there and he might be abused as well”.

12. A Registered Mental Health Social Worker, [name deleted], has more recently (21 December 2021) provided a letter stating that he/she has been providing counselling to the applicant to address his mental health issues.  The applicant, born in Turkey of Kurdish ethnicity, is from a family of three children.  It is also reported by the Mental Health Social Worker:

    During the intervention, [the applicant] reported a prolonged history of depression and anxiety.  He presents reduced capacity of concentration, interest and enjoyment.  He feels anxious, worried, irritability and disturbed sleeps.  In order to improve his mental health, client saw [two psychologists] at different occasions in the past.  I noted that a series of negative life experiences together with current issues negatively impacted his psychological wellbeing and exacerbated symptoms of depression and anxiety that he has been experiencing for many years.  In conclusion, my prognosis is positive rather than guarded for [the applicant] as he commenced counselling.  Client is willing to comply with the recommended treatment plan which will be cognitive behavioural therapy and skill trainings for stress management and relaxation.  Client intends to travel to Turkey with his ex-wife and their two children [within] the next 6 months.  The objective of the clinical intervention is to work on [the applicant]’s mental health issues and assist his recover (sic) as much as possible to prepare him to move back his home country.  It would be greatly appreciated if [the applicant]’s application for medical treatment visa is approved.  It would be a great contribution to the improvement of his welfare and overall well-being”. 

13. At hearing the applicant stated that he had been the victim of family violence but had not sought assistance as he did not have any guidance.  He was emphatic that he could not return to Turkey because of his ex-wife’s family who would harm him.  This, according to the applicant, had been the subject of his Protection visa application which had been refused by the Department. 

14. Asked how the applicant survived during the period he was unlawful in Australia, the applicant stated that friends helped him because he was not permitted to work.  He stated that obtaining psychological assistance was difficult because financially he could not afford it.

15. Having regard to the considerations set out under cl.602.215(1)(a) to (c), the Tribunal takes into account the applicant’s migration history. 

    ·     The applicant arrived in Australia [in] August 2013 as the holder of a Partner Provisional (Subclass 309) visa.  The visa ceased on 17 February 2014.

    ·     On 26 February 2013 the applicant lodged a Permanent Partner (class BC) visa which was refused on 23 January 2014.

    ·     On 7 April 2015 the applicant lodged a Permanent Protection (class XA) visa which was refused on 21 October 2016.  He sought review of the decision at the Administrative Appeals Tribunal (AAT) but the Tribunal also found that the applicant was not owed protection by Australia.

    ·     The applicant remained in Australia as an unlawful non-citizen for over one year. 

16. The Tribunal accepts that the applicant has mental health challenges and that he may not have had significant resources to pursue intensive and continued psychological treatment, this is even though the Tribunal notes that the Mental Health Social Worker seen in December 2021 recently runs a private practice.  Nonetheless, even if the applicant has had limited funds to deal with his mental health issues in Australia, the application for this visa was made on 10 December 2019, some two years ago and the Tribunal would have expected that within the two years the applicant would have been able to address some of his difficulties. 

17. The Tribunal has limited information before it to indicate the trajectory of his treatment and why it needs to be ongoing in Australia, when the applicant has already had the benefit of several years to access Australia’s medical health services.  The Tribunal has limited information before it about what targeted assistance the applicant has received in the two years he has resided in Australia.

18. [The social worker] in his report states that the applicant wants further time in Australia to build up resilience for when he returns to Turkey with his ex-wife and two children, but it is unclear to the Tribunal for how long the treatment is needed and why previous psychologists and psychiatrists have not offered the applicant what the Social Worker is now offering in terms of “cognitive behavioural therapy and skill trainings for stress management and relaxation”.  The Tribunal is also not satisfied that such treatment, possibly along with anti-depressant medication, would not be available to the applicant in Turkey.  In any event, [the social worker] states that the prognosis is positive rather than guarded and the Tribunal sees no reason the treatment currently being proposed could not be undertaken in Turkey.

19. It is also surprising to the Tribunal that the Social Worker comments that the applicant intends to return to Turkey with his ex-wife, the same wife it is presumed perpetrated family violence against him.  The Social Worker’s comments are also not consistent with the applicant’s strong evidence at hearing that he feared returning to Turkey because his ex-wife’s family would target him.

20. For all these reasons, the Tribunal has concerns that the applicant is using the Medical Treatment visa, not as a genuine opportunity to address his mental health issues, but rather to prolong his stay in Australia indefinitely.  While the Department and the Tribunal has carefully reviewed the applicant’s claims that he fears harm on return to Turkey and is owed protection, it appears that the applicant continues to hold a subjective fear, at least, that he will be seriously harmed.  The Tribunal has serious concerns, therefore, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted, that is, to seek a finite period of medical treatment, and then return to Turkey. 

21. In terms of cl.602.215(1)(a), the applicant has stated that he has not worked in breach of his visa conditions and that friends are supplying food and shelter.  The Tribunal is not in a position to contradict the claims, and given the applicant seems to have had mental health problems, it is plausible he has been dependent on others to survive, even when he was an unlawful non-citizen. 

22. Nonetheless, the applicant made no attempt when he no longer held a substantive or Bridging visa to regularise his status with the Department.  The Tribunal notes that the applicant had the wherewithal to lodge several substantive visa applications in Australia so it is unclear why the applicant could not have turned to the Department to advise that he needed to stay in Australia for medical treatment, or for other reasons, rather than become an unlawful non-citizen.  The Tribunal has concerns, therefore, that the applicant engages with the Department when, and if, it suits him to do so.  For this reason, the Tribunal is not satisfied that the applicant will not again disengage from the Department and live in the community unlawfully, as he has done in the past for a lengthy period, were he to run out of options for remaining in Australia lawfully.

23. The Tribunal is also not convinced that the applicant has an intention to return to Turkey with his children.  If the applicant’s children are Australian citizens by virtue of their mother’s citizenship, then the Tribunal is not convinced that the applicant would leave behind his children and return to Turkey on expiry of his Medical Treatment visa if it were granted.  Similarly, the Tribunal also has doubts that the applicant would want to take them with him to Turkey where they would experience a lower standard of living.

24. The Tribunal considers that the applicant is highly motivated to remain in Australia because of his subjective fear of returning to Turkey, but also because his young family would have a better future in Australia.

25. The personal circumstances of the applicant are somewhat confusing in terms of his family, and the current state of his relationship to his ex-wife.  The applicant had the opportunity to make an application on the grounds he had been a victim of family violence or that he has legal responsibility towards Australian citizen children.  The Tribunal is not in a position to assist the applicant regularise his status in Australia.  The Tribunal does not consider, however, that a Medical Treatment visa is for the purposes of obtaining a permanent or indefinite migration outcome to Australia.  Nor can the Tribunal reopen the issue of whether Australia owes the applicant protection under its international obligations. 

26. The Tribunal is concerned that at hearing the applicant did not appear to accept that the Medical Treatment visa would not resolve his residency status given the visa would be finite and then he would have to leave the country.  If the applicant wishes to remain in Australia to be with his children and to protect himself from his ex-wife’s relatives, these are matters that the applicant needs to seek legal/migration advice about.  

27. Having weighed the evidence carefully, the Tribunal finds the applicant’s claims that he cannot return to Turkey as expressed at hearing, overwhelmingly leads the Tribunal to have doubts that the applicant genuinely intends to stay temporarily in Australia as required by the Medical Treatment visa and the Tribunal is not satisfied that he has such a genuine intention.

    Conclusion

28. Given the above findings, cl 602.215 is not met.

29. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    DECISION

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

    Rosa Gagliardi
    Member