2316379 (Migration)

[2024] AATA 2554

2316379 (Migration) [2024] AATA 2554 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2316379

MEMBER:Margie Bourke

DATE:23 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl.602.215 of Schedule 2 to the Regulations.

Statement made on 23 April 2024 at 11:45am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Federal Circuit and Family Court remittal – genuine intention to stay temporarily for purpose of visa – non-compliance with conditions of last substantive visa – cancellation set aside on review – application for further student visa not recorded as received by department – intention to comply with conditions of this visa – no wish to continue studying, no intention to apply for further visa and intention to return to home country – mental and physical health and treatment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 2 March 2021 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 8 February 2021. 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. In the Department’s decision record dated 2 March 2021, the delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant met the requirements of cl.602.215, and the delegate was not satisfied the applicant genuinely intended to remain in Australia on a temporary basis.

4. The applicant applied to the Tribunal for review of the Department’s decision, and the Tribunal (differently constituted) in a decision record dated 11 May 2022 affirmed the decision of the Department.

5. By order of the Federal Circuit and Family Court of Australia (Division 2) dated 22 September 2023, the decision of the previous Tribunal was quashed and the matter was remitted back to the Tribunal to be constituted by a different member to reconsider and determine the application for review. The reasons for judgement set out that the decision of the previous Tribunal was affected by jurisdictional error, on the basis the Tribunal did not properly consider the evidence about the applicant’s psychological condition and how it related to ongoing treatment the applicant was having, or intended to have, in Australia.

6. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, including that he resided in Tasmania, and the nature of the review. The review did not involve an extensive amount of paperwork to be put to the applicant during the course of the hearing. The Tribunal is of the view that the conduct of the hearing by video would allow the applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The Tribunal had regard to the length of time since the applicant first applied for review of the Department’s decision on 23 March 2021. For all the above reasons the Tribunal determined it was appropriate that the conduct of this review be by video connection.

7. The applicant appeared before the Tribunal on 22 April 2024 to give evidence and present arguments.

8. The applicant had advised the Tribunal prior to the hearing that a witness would be attending. On the day of the hearing the applicant advised the witness could not attend due to work commitments.

9. The applicant provided a submission to the Tribunal prior to the hearing, in which he advised that he may not be able to express himself while speaking the hearing due to stress, and asked the tribunal to consider his written submission. The applicant provided clear and articulate evidence in the hearing, and provided coherent responses to all the questions asked of him in the hearing. The Tribunal is satisfied that it can rely on the oral evidence of the applicant, as well as his written submission and evidence.

10. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 of the medical treatment.

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

12. Clause 602.215(1) 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.

13. Pursuant to cl.602.215(2) the requirements in cl.602.215(1) will not apply if the applicant is medically unfit to depart Australia as described in cl.602.212(6). This subclause requires that an applicant meets all the requirements of cl.602.212(6)(a)-(f) which include:

    ·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.

14. I have considered the identity documents in relation to the applicant, including his [Country] passport which records his date of birth as [Date]. I am satisfied that the applicant was born in [Year], and at the time of application on 8 February 2021, and at the time of this decision the applicant has not turned 50 years of age. Therefore, the applicant does not meet the requirements of cl.602.212(6)(b).

15. Accordingly I am satisfied that the applicant does not meet all of the requirements set out in cl.602.212(6)(a)-(f), and does not satisfy cl.602.212(6). Therefore, the requirements in cl.602.215(1) apply to the applicant.

16. In the present case, the visa applicant seeks the visa for the purposes of cl.602.212(2).  This is a purpose for which a Medical Treatment visa may be granted: cl.602.212.

    Assessment of genuine intention to stay temporarily in Australia

17. Cl.602.215(1)(a): – requires the decisionmaker to have regard to 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. I am satisfied that the applicant previously was the holder of a student visa which was cancelled by the Department for non-compliance, namely that the applicant was not enrolled in a registered course, and did not maintain enrolment. Upon review to the Tribunal (differently constituted) in a decision record dated 5 June 2020, the decision to cancel the applicant’s student visa was set aside. The applicant stated that non-compliance was due to psychological issues following the breakdown of a relationship with his girlfriend. The applicant stated he was not able to study because of the psychological issues he was facing. The applicant provided a psychological report to the Department which set out that he had not studied from February to November 2018, and the psychological reasons behind the circumstances where he had not enrolled or studied during that period of time, including that he was diagnosed as experiencing stress, anxiety and depression.

18. The applicant applied for a further student visa after the cancellation of his previous student visa was set aside. The applicant stated the application was made within 28 days of the Tribunal decision in relation to setting aside the cancellation of the student visa.  The applicant initially lodged the application online, and then was advised by the Department that in the circumstances that he did not hold a substantive visa, he was required to submit a hard or paper copy of the application. The applicant stated that he forwarded the application for the visa to the Department by express post, and he has confirmation in the form of a tracking number and delivery from Australia Post, and receipt records of the money taken for payment of lodging the visa to confirm that the paper application of the student visa in June 2020 was made within the required time frames.

19. The applicant’s evidence is that he feels aggrieved that his application was not recorded as received by the Department within the timeframe. The applicant’s evidence is that he was subsequently advised by the applicant that he was now out of time and could not apply for a further student visa. The applicant stated that at that time he wished to continue his studies prior to returning to [Country].

20. The applicant subsequently lodged the application for the medical treatment visa, and has been on subsequent bridging visas. There is no evidence before the tribunal that the applicant has not complied with the conditions to which his bridging visas are subject; the applicant stated that he has conditions on his bridging visa that he not study, not work and he has no travel rights to depart and return to Australia.

21. I am satisfied based on the written evidence provided by the applicant and his oral evidence in the hearing that there was substantive non-compliance with the conditions of the applicant’s last substantive visa. I am satisfied that there has been substantive compliance with the conditions of subsequent bridging visas held by the applicant.

22. Cl.602.215(1)(b): – requires the decisionmaker to consider whether the applicant intends to comply with the conditions to which the subclass 602 visa would be subject. The evidence before the Tribunal is that the applicant did not comply substantially with the conditions of his previous student visa due to a psychological condition following the breakdown of his relationship with his girlfriend. The evidence before the tribunal is that the applicant has complied substantially with the conditions of bridging basis that he has held for the last three years.

23. The applicant stated that he intends to comply with the conditions to which the visa would be subject. The applicant stated that he wishes to overcome his mental health issues before returning home. The applicant stated that mental health “is not considered good” in [Country]. I am satisfied that access to the psychologists, psychiatrists and medication would be difficult in [Country], and I am also satisfied that the applicant has a fear of stigma from his family and community if it is known that he is experiencing significant mental health issues.

24. The applicant stated he no longer wishes to complete his studies in Australia. He stated he is the only son in the family and it was the dream of his parents that he study in Australia. The applicant stated that he intends to return to [Country], but is distressed and concerned that he has been here for many years, has spent his parents’ money and has not achieved any academic qualification. The applicant stated he wishes to participate in more medical treatment so he has the confidence to return to his home country.

25. I am satisfied that at the time of application the applicant had received treatment, and wished to receive further treatment in relation to his mental health issues, including psychiatric appointments, medical appointments and psychological appointments and prescribed medication. I am satisfied that at the time of this decision the applicant has been diagnosed with major depression, has been prescribed anti-depressant medication for 12 months, has regular, if not frequent, appointments with a psychiatrist, has future referrals and appointments with a psychiatrist scheduled, and has developed a hair loss condition called alopecia. I am satisfied that the applicant is undergoing a course of treatment and is still under the supervision of his general practitioner who completed the original form 1507, and that he is continuing to be referred to a psychiatrist at [Provider].

26. I am cognisant of the length of time the applicant has been receiving treatment, and discussed this with the applicant. I accept that the ongoing legal processes have not assisted the applicant in overcoming his mental health issues.

27. I am satisfied that the applicant intends to comply with the conditions of a medical treatment visa, in order to participate in ongoing medical treatment in relation to his condition, and that the applicant intends to return to [Country] when his treatment has achieved the improvement in his condition.

28. I am satisfied based on the evidence of the applicant that he intends to comply with conditions, if they are attached to the medical treatment visa, not to study, not to work and that he is not entitled to apply for another substantive visa whilst the holder of the medical treatment visa.

29. Cl.602.215(1)(c): – requires the decisionmaker to consider any other relevant matter, in its assessment of whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

30. I have considered that in his evidence the applicant remained focused on what he considers his unfair treatment by the Department in relation to his application for a further student visa in June 2020. I discussed with the applicant that this review involved whether he met the requirements of cl.602.215 for the purposes of a medical treatment visa. I discussed with the applicant that his evidence of the circumstances involved in his application for a student visa in June 2020, in relation to the impact it had on his mental health was relevant to this review. However I discussed with the applicant that this review could not resolve his concerns in relation to that student visa application.

31. The applicant stated that he does not wish to continue to study, and does not wish to make another application for a student visa. The applicant stated that he wishes to be reimbursed for his payment for the application for the student visa. The applicant stated that he wishes to receive an explanation for why the application for the student visa was not accepted when it was made in time. I discussed with the applicant that he may need to seek legal advice to resolve these issues.

32. I also discussed with the applicant that it was important that he understood that if he was telling the tribunal that he intended to return to [Country] as soon as his treatment was completed, that this is recorded in the decision record. I discussed with the applicant that it was important that he understood that his evidence to the tribunal that he does not intend to apply for a further student visa and does not wish to study in Australia, will be recorded in this decision record. I discussed with the applicant that it was important that he understood that his evidence to the tribunal that he does not intend to remain in Australia after the expiration of a medical treatment visa, and genuinely intends to return to [Country] to provide the support for his parents and to establish his life and career there, would be considered by the Department if the applicant made a further application for another visa in the future. I discussed with the applicant that if he was not being truthful with the tribunal and did not genuinely intend to stay temporarily in Australia for the purpose of medical treatment, and subsequently applied for a further substantive visa, his evidence to the tribunal may be interpreted as inconsistent, and may be interpreted as false or misleading.

33. The applicant stated that he understood his evidence in relation to his intention to stay temporarily in Australia for the purpose of medical treatment would be recorded in the Tribunal’s decision record, and further that he understood this evidence would be considered if the applicant then chose in the future to make an application for another visa. The applicant stated he understood that his evidence could be reflected upon in the future, and that he genuinely intended to return to [Country] when his treatment was completed. The applicant stated he had a few more appointments scheduled, and he felt he was more confident after his treatment and the treatment was being successful.

34. Conclusion: – I have assessed the evidence before me, and I am satisfied that the applicant has applied for a medical treatment visa, to deal with his psychological issues and feelings, and the treatment includes referral to a psychiatrist, referral to a psychologist and prescribed medication. I am satisfied that the applicant has commenced a course of treatment, is currently taking prescribed antidepressant medication, and currently has ongoing appointments and referrals to a psychiatrist organised by his general practitioner. I am satisfied that the applicant seeks the medical treatment visa for the purposes of medical treatment.

35. I have assessed the evidence, including that the applicant did not substantially comply with the conditions of his previous substantive visa. However I accept that the applicant has complied with the conditions to which his subsequent bridging visas were subject. Further I am satisfied that at the time of the substantial non-compliance with the previous substantive visa, the applicant was suffering symptoms of stress, anxiety and depression, and his mental health issues are relevant to his non-compliance.

36. I am satisfied based on the evidence of the applicant that he does not wish to remain in Australia after completing his current scheduled appointments, or achieving improvements in his mental health from his medical treatment. I satisfied the applicant understands the relevance of the evidence he has given to the tribunal in relation to not wishing to apply for further visas whilst in Australia as the holder of a medical treatment visa.

37. For all the above reasons I am satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

38. Given the above findings, I am satisfied that the applicant meets the requirements of cl.602.215.

39. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

    DECISION

40. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

    ·cl.602.215 of Schedule 2 to the Regulations.

    Margie Bourke
    Member