Adhikari (Migration)

Adhikari (Migration) [2019] AATA 6856 (29 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Keshab Prasad ADHIKARI
CASE NUMBER:  1810063
DIBP REFERENCE(S):  BCC2018/317080
MEMBER:Louise Nicholls
DATE:29 October 2019
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 29 October 2019 at 5:14pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – strong motivation to remain in Australia indefinitely – equivocal and vague medical evidence – lack of compliance in the past – adverse migration history – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359, 417
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

The applicant is a citizen of Nepal and is 48 years of age. He arrived in Australia on 18 December 2004 as the holder of Subclass 679 Sponsored Visit visa and has remained in Australia since that date. After the applicant’s sponsored visit visa ceased in 2005 he held a series of bridging visas.
The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 12 January 2018. He provided a number of documents with his application, including;
·Form 1507 (Evidence of intended medical treatment) completed by Dr Peter Low on 9 January 2018. The form states the medical condition being treated is anxiety and depression with treatment being counselling and medication.
·Photocopy of the biodata page of the applicant’s Nepali passport issued on 31 October 2004.
·NSW Photocard.
·Short medical reports from Dr Peter Low dated 4 January 2018 and 12 September 2017. Dr Low states that the applicant is suffering from major depression and is currently on medication and having counselling sessions with a psychologist.
·Statement from Prabin Adhikari (the applicant’s son) dated 10 January 2017, with supporting payslips, stating that he has been providing financial support to his father.
The applicant’s representative also provided written submissions on behalf of the applicant.
On 26 March 2018 a delegate of the Minister for Immigration refused to grant the applicant a Medical Treatment (Visitor) (Class UB) under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.
This is an application for review and it was lodged on 10 April 2018. The applicant provided a copy of the delegate’s decision record with the application. He also provided a copy of a letter from Dr Peter Low dated 9 April 2018 which essentially repeated the advice he gave in his earlier letters.
On 17 September 2019 the applicant was invited, pursuant to the provisions of s.359(2) of the Act, to provide relevant information.
Noting that the applicant had indicated in his application that he wished to remain in Australia from 4 January 2018 to 31 December 2018 for the purpose of medical treatment, the applicant was invited to provide the following information;
·1. When does the medical treatment you have undertaken end, or when is it due to end. Please provide supporting medical evidence.
·2. Noting that you have been in Australia since 18 December 2004, please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
In response the applicant provided a further letter from Dr Peter Low dated 24 September 2019 which stated that the applicant was suffering from depression and is currently on medication and is having regular counselling. He stated he will continue to have the treatment which he envisages will continue for many years. He also stated that he suffered from vague back and neck pain which probably arises from tension and depression. He swims and gets therapeutic massage for relief.
The applicant also provided a discharge document from the Emergency Dept of Blacktown Hospital dated 20 October 2019. He presented with congested nose, sore throat and cough. He had chest pains associated with the cough and had a fever. The history noted he was usually well. He was prescribed antibiotics and pain relief. There was no suggestion that any other treatment was recommended.
The applicant’s son provided a further letter dated 20 October 2019 confirming that he was financially supporting the applicant.
The applicant appeared before the Tribunal on 28 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time of application, 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 (the Regulations).
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
Relevantly to this matter cl. 602.215 provides
(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.
The issue in this case is whether the applicant has a genuine intention to stay temporarily for the visa purpose.
Background
The applicant arrived in Australia as the holder of a sponsored visit visa in December 2004. In his representative’s submissions it was noted that the applicant had lived in Australia since 2004 and has held bridging visas as his numerous visa applications have been refused and associated appeals have been unsuccessful.
He claimed that as a result of his visa history he has developed post-traumatic stress disorder, is suffering mental illness and receiving medical treatment from health professionals. The applicant is living with family and receiving family support.
The applicant gave evidence at the Tribunal hearing that he was born in 1971 and is 48 years of age. He gave evidence he was born in a village in Nepal but has lived in many places including Kathmandu.
He and his wife married when he was about 30 years of age. His wife is living in Australia with him at the moment although she only arrived in 2017. His parents have passed away but he has two brothers and three sisters living in Nepal. One brother lives in Kathmandu and his other siblings live in villages.
The applicant and his wife have two sons and one daughter all of whom are living in Australia at the moment. One of his sons is an Australian citizen and a registered nurse; his second son and his daughter are the holders of student visas.
Before he left Nepal he ran a tourism business. The applicant’s wife owns some properties in Nepal.
Migration and visa history
The applicant arrived in Australia on 18 December 2004 travelling on a sponsored visit visa. He told the Tribunal that his brother invited him to visit in Australia. He was not sure if his brother had paid a bond as a condition of the sponsored visit visa or whether he had forfeited a sum of money when the applicant did not return to Nepal.
The Tribunal noted the applicant’s visa history as set out in the delegate’s decision and the applicant indicated that it was correct. The Tribunal pointed out that the applicant’s last substantive visa ceased on 18 March 2005 and since then he has held a series of bridging visas. The applicant told the Tribunal that his wife arrived in Australia in 2017 and she has made an application for a [permanent] visa which has not yet been considered by the Department. Departmental records indicate that the applicant’s wife applied for a [permanent] visa on 8 March 2018 and that the applicant is included in the application as a dependent.
The Tribunal notes that following visa history;
·Arrived in Australia as the holder of a Subclass 679 Sponsored Visit visa on 18 December 2004. His visa ceased on 18 March 2005.
·On 21 January 2005 the applicant applied for a [permanent] visa. His application was refused by a delegate of the Minister on 11 February 2005.
·The applicant applied for review [on] 16 March 2005.
·On 23 June 2005 the [tribunal] affirmed the delegate’s decision.
·On 21 July 2005 the applicant appealed to the Federal Magistrates Court (FMC) as it was known then.
·On the 26 April 2006 the application was remitted to the [tribunal] for reconsideration.
·On 22 August 2006 the [tribunal], differently constituted, affirmed the decision.
·On 18 September 2006 the applicant appealed to the FMC.
·On 28 November 2007 the matter was remitted to the [tribunal] for reconsideration.
·On 16 September 2008 the [tribunal] affirmed the decision.
·On 3 October 2008 the applicant appealed to the FMC.
·On 12 August 2009 the FMC decided in favour of the Minister and dismissed the appeal.
·On 28 August 2009 the applicant appealed to the Full Federal Court.
·On 4 March 2010 the matter was remitted to the [tribunal] for reconsideration.
·On 1 April 2010 the Minister applied for leave to appeal the Full Federal Court decision to the High Court.
·On 16 August 2010, having successfully obtained special leave to appeal, the Minister appealed the decision to the High Court.
·On 2 February 2011 the High Court allowed the Minister’s appeal against the decision of the Full Federal Court.
·On 4 March 2011 the applicant sought ministerial intervention pursuant to s.417 of the Act. The Minister did not intervene.
·On 23 March 2011 the applicant obtained the first of several bridging visas granted on departure grounds.
·On 2 October 2012 the applicant a lodged second application for a [permanent] [visa].
·On 2 May 2014 the application was refused.
·On 2 May 2014 the applicant applied to the [tribunal] for review of that decision.
·On 30 June 2015 the [tribunal] affirmed that decision.
·On 24 July 2015 the applicant appealed to the Federal Circuit Court of Australia (FCCA).
·On 21 November 2016 the FCCA dismissed the application for judicial review.
·On 2 December 2016 the applicant appealed the decision to the Full Federal Court. On 10 May 2017 the Full Federal Court dismissed the appeal.
·On 7 June 2017 the applicant appealed the decision to the High Court.
·On 14 December 2017 the High Court dismissed the appeal.
The applicant remained in Australia following the appeal to the High Court and on 12 January 2018 he applied for the medical treatment visa which is the subject of this review.
Is the applicant unfit to depart Australia?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl.602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl.602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The applicant provided a photocopy of his passport which shows his date of birth as 4 August 1971. His application also shows this as his date of birth. The Tribunal finds that the applicant is in Australia but has not turned 50 years of age.
Given the above findings, the requirements in cl.602.212(6) are not met.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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).
As set out above the applicant does not meet the requirements in cl. 602.212(6). Thus the applicant is required to meet the requirements in cl.602.215.
Has 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?
The last substantive visa held by the applicant was a Subclass 679 visa which ceased on 18 March 2005. He has held a series of bridging visas on departure grounds since his sponsored visit visa ceased.
The subclass 679 visa granted in 2004 was subject to a number of conditions including 8531 which provides the visa holder must not remain in Australia after the end of the period of stay permitted by the visa.
The applicant told the Tribunal that he believed that there was a condition on his sponsored visit visa that he was required to leave before the end of the visa period. However, he pointed out that he had applied for a [permanent] visa. Further he had always held bridging visas during his lengthy stay in Australia.
The Tribunal has considered the evidence regarding the applicant’s compliance with visa conditions. The Tribunal finds that the applicant’s last substantive visa ceased in 2005 and since then he has not held a substantive visa. Other than for remaining past the expiry date of his visa there is no evidence that he failed to comply with any other visa conditions. With respect to bridging visas held there is no evidence of failure to comply with conditions.
Does the applicant intend to comply with the conditions to which the Subclass 602 visa would be subject?
Medical treatment visas are subject to condition 8201 (No studies) and may be subject to 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).
There is no evidence that the applicant intends to study while in Australia and the Tribunal accepts that the applicant will comply with condition 8201.
With respect to condition 8503 the applicant notes that the applicant applied for a [permanent] visa in 2005 and continued to actively pursue his application for judicial review through the courts for many years. Despite being ultimately unsuccessful in his two separate appeals to the High Court, he has remained in Australia and applied for a medical treatment visa. The Tribunal considers that the applicant has a strong motivation to remain in Australia and that if condition 8503 is placed on any visa it is probable, given his past history, that he will take steps to obtain a waiver of such a condition.
Other matters which are relevant to assessing the applicant’s intention.
At the hearing the Tribunal discussed the purpose of a medical treatment visa and the requirement that an applicant must have a genuine intention to stay in Australia temporarily for the stated purpose. The Tribunal noted that the applicant had provided some medical evidence from his general practitioner that he was receiving treatment for depression and anxiety. The applicant stated that he is receiving monthly counselling from a psychologist, Pierre Louis Lamarque. His psychologist had suggested that he engage in swimming, yoga and listening to music to help with his condition.
The applicant was not able to indicate when his medical treatment was to end; he stated it was hard because there were many ongoing issues. The Tribunal put it to the applicant that country information indicated there are mental health services available in Nepal and that medications for mental health conditions are readily available. If the treatment for his condition was to continue the Tribunal put it to him that he could obtain that treatment in Nepal.
The applicant agreed but stated his son is a registered nurse and provides him with necessary support. His other children also gave him lots of support in Australia and this would not be available to him in Nepal if he returned. The Tribunal pointed out that the visa is a temporary visa and that his evidence suggested that he intended to stay in Australia indefinitely. He stated that perhaps if was granted a visa for one or two years he would see then if his family situation had changed.
The Tribunal asked the applicant if he wished to provide any further evidence supporting his claim that he intended to stay temporarily in Australia for the purpose of medical treatment, bearing in mind that he had been in Australia since 2004 and had taken many steps to obtain a permanent visa. He stated he was telling the truth.
Assessment
The Tribunal does not accept that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment. It considers that he has not provided reliable and probative evidence of an intention to remain temporarily in Australia.
The Tribunal has considered the applicant’s oral evidence and the documents he has provided in support of his application. The medical reports from the applicant’s general practitioner, Dr Low, are short, they lack specific particulars of the treatment being provided and were vague in terms of the length of treatment proposed. In his oral evidence the applicant claimed he also sees a counselling psychologist but did not provide a report from the counsellor indicating the nature of his treatment, whether the recommended treatment was continuing and indefinite or whether there was a treatment plan which anticipated an end to the course of treatment.
The applicant’s visa history, all the actions he has taken in the past, and the oral evidence he gave at the hearing indicate that he intends to remain in Australia indefinitely and has a strong motivation to do so. One of his sons is an Australian citizen and his two remaining adult children are living in Australia as the holders of student visas. His wife is now living in Australia and has applied for [a permanent visa] and has included the applicant as a dependent on her visa application. There are strong incentives for the applicant to remain in Australia.
While he claimed he has a genuine intention to stay temporarily his oral evidence generally indicates that he does not have this intention. He stated that he obtains support from his family in Australia and there were many “issues” which prevented him from proposing a specific end date to his residence in Australia.

Further the medical evidence does not support his claim that he has an intention to remain in Australia on a temporary basis for the purpose of medical treatment. The medical evidence does not set out any plan for the course of treatment to be provided or any clear indication of when that treatment will be concluded. As discussed with the applicant the country information indicates that mental health care and medication is available in Nepal[1]. If the applicant’s medical needs are indefinite and continuing then the Tribunal considers he could access that care and medication in Nepal on his return.
[1] International Medical Corps 2015 Rapid Mental and Psychosocial Support Situation Assessment 22 May p.3 internationalmedicalcorps.org/document.doc?id=672 :DFAT Country Report on Nepal 1 March 2019; National health insurance policy in Nepal: challenges for implementation, Global Health Action 21 August 2015.
In weighing the various factors, the Tribunal has taken into account that there is no clear evidence that the applicant has not complied with the conditions of his last substantive visa. However, given the period of time that has elapsed since the substantive visa was held this consideration carries little weight in the overall consideration.
There is no evidence that the applicant will fail to comply with any conditions which might be attached to a medical treatment visa. There is some suggestion in the delegate’s decision record that the applicant has been granted some bridging visas on departure grounds and may not have complied with this condition. However, given the absence of any clear evidence of non-compliance, the Tribunal does not find that the applicant has breached any conditions related to any bridging visas held. Nonetheless, given other factors set out above, the Tribunal does not consider that these factors weigh heavily in the applicant’s favour.
As set out above the Tribunal finds that the applicant has a strong motivation to remain in Australia indefinitely and does not intend to stay temporarily. Overall the Tribunal considers that the matters mentioned above, that is, his visa history, his conduct, his own oral evidence which suggests he intends to remain in Australia, and the equivocal and vague medical evidence which does not support evidence of his claimed intention to stay temporarily, are factors which weigh heavily in determining that the applicant does not have a genuine intention to stay temporarily in Australia for medical treatment.
Given the above findings, cl.602.215 is not met.
Conclusion
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Louise Nicholls
Senior 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).

[2019] AATA 6856

29 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal