Acharya (Migration)

[2022] AATA 3437

Acharya (Migration) [2022] AATA 3437 (27 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Subash Acharya

CASE NUMBER:  2103249

HOME AFFAIRS REFERENCE(S):          BCC2021/16099

MEMBER:Wendy Banfield

DATE:27 September 2022

PLACE OF DECISION:  Canberra

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

Statement made on 27 September 2022 at 5:07pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – medically unfit to depart Australia – treatment after motorcycle accident – period of unlawful residence – mental health issues – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

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 24 February 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 26 January 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. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant was medically unfit to depart Australia and was not satisfied the applicant genuinely intended to remain in Australia temporarily and therefore did not meet the criteria in cl 602.215.

4. The applicant appeared before the Tribunal on 27 September 2022 to give evidence and present arguments.

   Background

5. The applicant is a citizen of Nepal and is currently 24 years old. He arrived in Australia on 25 February 2017 as the holder of a Student visa. The applicant did not complete his studies and his visa expired on 15 March 2020. The applicant was involved in a motorcycle accident in 2019 and was treated for a fracture. He also attended a psychologist in 2020 for depression and anxiety. The applicant has twice been granted Bridging visas on departure grounds but has not left Australia. According to the Department, the applicant has been unlawful three times prior to applying for a medical treatment visa.

6. The applicant submitted the following evidence to the Department:

   ·     Medical treatment application form.

   ·     Medical discharge form.

   ·     Evidence of intended medical treatment form dated 23 January 2021.

   ·     Medical referral letter to Dr Laura Cotiga for depression and anxiety dated 8 December 2020.

   ·     Report from Stephen Sutton, Psychologist dated 25 November 2020.

   ·     Westmead Hospital appointment letter dated 18 April 2019.

   ·     Nepal Police report dated 31 January 2017 in the name of the applicant.

   ·     Royal Prince Alfred Hospital discharge letter dated 17 September 2019.

   ·     Email statement dated 15 February 2022.

7. The applicant submitted a copy of the Department’s notification and decision record dated 24 February 2021 to the Tribunal but did not provide any further evidence.

   The hearing

8. The applicant confirmed he first came to Australia as a student in 2017 and was intending to study a Bachelor of Accounting. He said he changed to a Bachelor of Information Systems but did not complete the course. He enrolled instead in a Diploma of Business but did not complete that course either. The applicant said he last studied in 2020.

9. The Tribunal asked the applicant why he was applying for a Medical Treatment visa. He explained that he had been involved in a motorcycle accident and had broken his arm. The applicant claimed his studies had been affected and he stayed at home. Regarding any current medical treatment, the applicant stated he had undertaken therapies two years ago. When asked for details the applicant said he saw a psychologist at the end of 2020. He said he did not have any further treatment after that. The applicant referred to an appointment he had that was subsequently cancelled. He said he did not ultimately go to any further treatment.

10. The Tribunal put to the applicant that according to the Department’s decision record provided in evidence, he was granted two Bridging visas on departure grounds, but he has not left Australia. The applicant said he was “out of focus”, was not eating or sleeping properly and “did not feel comfortable going home”. The applicant was asked why he was still seeking a medical treatment visa when he is not undergoing any treatment. The applicant claimed that there has been a delay since his application, and he is feeling a little better although he still has issues and feels “a bit confused”. The applicant claimed he is not working in Australia and relies on friend for accommodation and expenses. He declared “they let my family pay it back”. When asked if he is receiving any income at all, the applicant declared his is not.

11. The applicant agreed he is not currently undergoing or seeking to obtain medical treatment. He said he does want to stay in Australia and is disappointed he did not continue studying. However, he claimed it was hard to do so because he had issues, could not go out by himself and for a period, stayed at home. According to the applicant, he was advised by a migration agent to take time for himself and was also advised to apply for a Medical Treatment visa. The applicant was asked about his plans and he said he does not have any and does not know what to do now since he did not complete his studies. He said he is aware he cannot do “it” [study] now.

12. The Tribunal explained to the applicant that both Student visas and Medical Treatment visas are temporary and will not allow him to remain in Australia indefinitely. The applicant was asked if he wanted to comment on any ongoing medical issues. Initially the applicant did not answer but then responded that he did not know how to explain. The applicant said at the time he thought applying for the visa seemed correct. He repeated that he did have issues but is more stable than before. The applicant was asked if he had any further submissions to make in support of the application for review but he said he did not.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

    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. 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.

16. The applicant is in Australia and is currently 24 years old. There is no information that would indicate the applicant has applied for any other visa to be able to reside in Australia or that he would be eligible to apply for any other visa to remain in Australia. There is nothing to indicate that any condition the applicant is suffering from would make him medically unfit to depart Australia.

17. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 applies.

18. In the present case, the visa applicant was seeking the visa for the purpose of obtaining treatment for his mental health. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

    Assessment

19. The medical evidence provided in support of the application indicates the applicant was attending a psychologist for issues with his mental health. There is no independent medical evidence to indicate the applicant has followed recommendations for treatment or is currently receiving any medical treatment. The applicant’s evidence at the hearing was that he has not sought any medical help since 2020, because, he claimed, a subsequent appointment for mental health treatment was cancelled and he did not follow up or reschedule to a later date.

20. In his evidence to the Department the applicant declared he wanted to undertake mental health counselling and his “sole purpose” in applying for the visa was to obtain treatment from a psychologist. He claimed he had been under immense pressure and was “denied of student visa application because of my accidents and many other problems”. The Tribunal accepts that based on the medical evidence provided at the time of application, the applicant did suffer an injury after a motorbike accident that may have affected his ability to study. However, he appears to have received treatment in hospital and recovered. He did not claim to be seeking any medical treatment in relation to the accident. The Tribunal is also satisfied he attended an appointment with a psychologist in 2020, however, there is no evidence the applicant has, or is intending to arrange any further treatment. The applicant did not deny this was the case.

21. At the Tribunal hearing the applicant did not give any indication of when he intends to depart from Australia. He did not dispute that he had been granted two Bridging visas in the past on departure grounds and gave vague reasons for why he did not return to Nepal then. This included being “confused”, “out of focus” and not comfortable doing so. The Tribunal reminded the applicant the Medical Treatment (Visitor) (Class UB) visa is temporary, and he must have an intention to depart after undertaking medical treatment in Australia, but he gave no indication of when he plans to return to his home country. The Tribunal concluded the applicant does not have grounds to be granted a Medical Treatment visa.

22. Having considered the written and in-person evidence provided, the Tribunal is of the view that the applicant's immigration history in Australia, his failure to pursue further medical, and his lack of reasons for his failure to depart from Australia demonstrate that he does not intend to stay in Australia temporarily. For these reasons, the Tribunal finds that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

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

24. 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

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

    Wendy Banfield
    Member