Bhatta (Migration)

[2022] AATA 4457

Bhatta (Migration) [2022] AATA 4457 (8 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Subhesh Bhatta

CASE NUMBER:  2107417

HOME AFFAIRS REFERENCE(S):          BCC2021/546415

MEMBER:Naomi Schmitz

DATE:8 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2022 at 9:30am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – confirmation of study enrolment – lengthy stay in Australia – period of unlawful residence – applicant employed in Australia – three months study limit – maintaining ongoing residence in Australia – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359, 360
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 5 May 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 15 April 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 the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215. Relevantly in this case, the applicant’s time onshore in Australia and migration history raised concerns over the applicant’s intention to be a genuine temporary entrant. In addition, the applicant disclosed to his psychologist that he had a confirmation of enrolment for two semesters at university and that he wished to remain in Australia to study and complete his five remaining subjects.[1]

   [1] Delegate’s decision record and psychological report dated 20 January 2021 by consultant psychiatrist Stephen Sutton submitted by the applicant.

4. On 7 June 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 9 September 2022 the Tribunal invited the applicant under s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review, namely the applicant’s migration history and time onshore in Australia. The notice stated that the applicant’s migration history suggested that the applicant wishes to stay permanently in Australia.

   1.Your migration records indicate that:

   (a)   You arrived in Australia over five years ago on 22 July 2017 on a Student (Class TU Subclass 500) visa which ceased on 30 August 2020. You have not departed since your date of arrival.

   (b)   You were unlawful for over five months when your Student visa ceased on 30 August 2020 until you were granted a Bridging (Class WE Subclass 050) visa on 12 January 2021. The Bridging visa (Subclass 050) was granted on the basis that you would depart Australia. You have not departed since that time and have held a series of bridging visas since.

   (c)   You applied for a Medical Treatment (Class UB Subclass 602) visa on 15 April 2021 which was refused on 5 May 2021. You then applied for review of this decision on 7 June 2021 which is the subject of this review.

   This information is relevant to the review because your migration history suggests that you wish to stay permanently in Australia.

   2.You advised your psychiatrist Stephen Sutton that you wish to stay in Australia to recommence and complete your studies, including undertaking two semesters studying five subjects.

   The Medical Treatment (Subclass 602) visa is subject to condition 8201 (maximum three-month study). This information is relevant, as it indicates that you do not intend to comply with the conditions to which the visa would be subject clause 602.215(1)(b).

6. The Tribunal also on 9 September 2022 and in the same letter, invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:

   1.     Immigration records demonstrate that your last arrival in Australia was on 22 July 2017 on a Student (Class TU Subclass 500) visa which ceased on 30 August 2020. Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   2.     In your medical treatment visa application lodged on 15 April 2021, you claimed that you would like to remain in Australia from 23 April 2021 until 20 April 2022 to seek medical treatment as you were ‘going through; lots of stress anxiety and whole lot of pressure’ with the cost of any treatment to be covered by your parents. Why have you remained in Australia since 20 April 2022?

   3.     The Tribunal does not have information concerning your medical treatment. Please provide information regarding:

   a.     When you were first diagnosed with those condition(s);

   b.     What your current medical treatment for those condition(s) involves;

   c.     The prognosis of your medical condition(s); and

   d.     When does the medical treatment you have undertaken end or when is it due to end?

   4.     Noting you have been in Australia since 22 July 2017 please provide any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

7. The invitation to comment on or respond to information and request for information advised that if the applicant did not comment on or respond to the information put to him under s.359A or did not provide information pursuant to s.359(2) in writing by 26 September 2022, the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments: s.360(3) of the Act.

8. On 12 September 2022 the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 10:00am on 3 October 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

9. On 26 September 2022 in response the applicant provided:

   a.A written statement from the applicant responding to s.359A and s.359(2) invitations;

   b.A psychological report dated 20 January 2021 by consultant psychiatrist Stephen Sutton;

   c.An email dated 19 September 2022 confirming the applicant has an appointment at Mind Oasis Clinic on 18 November 2022 at 2:00 PM with Dr Sukumar Rajendran; and

   d.Response to the hearing invitation.

10. The applicant appeared before the Tribunal on 3 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant's uncle.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born in 1998 and is thus currently 24 years of age. The applicant has not applied for a permanent visa while in Australia. The Tribunal has no evidence before it that the applicant is physically or otherwise medically 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, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    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.

14. The s.359A invitation outlined in paragraph [5] above and delegate’s decision record detailed the applicant’s migration history.

    CONSIDERATION OF CLAIMS

15. The applicant is a citizen of Nepal. At the time of application, the applicant wrote that the purpose of his stay in Australia was medical treatment for ‘stress’ and ‘anxiety’. He claimed his stay would be funded by his parents. He indicated he would be under medical care for one year from 23 April 2021 until 20 April 2022.[2]

    [2] Departmental File BCC2021546415 - Applicant’s visa application

16. Attached to the visa application was a Form 1507 signed by Dr James Walter on 9 February 2021. It detailed the medical condition requiring treatment as ‘Treatment with a psychiatrist and psychologist’. The treatment information was ‘Psychiatrist – Dr Sukumar Rajendran, Ashfield and Psychologist Dr Stephen Sutton, Paramatta’. Also filed in support of the visa application was a psychological counselling report dated 20 January 2021 by Stephen Sutton consultant psychologist and a Commonwealth Bank of Australia statement dated 22 January 2021 with the closing balance of $122.20.

17. In the applicant’s written statement he detailed the following salient points:

    a.I first visited Dr Sukumar Rajendran for counselling on 9^th February 2021. I went for few additional counselling sessions. The doctor prescribed few medicines in 23 April 2021. Also, he suggested that I can continue to take this medicine and don’t need regular visits unless I have some serious difficulties.

    b.I don’t have any intention to stay permanently in Australia. All I want is to complete my studies so that I can go back to my country with a complete degree so that I can have a good career in Nepal.   

    c.After applying for review of decision I felt relived and started feeling more optimistic and starting to get over my symptoms but still moderately anxious and depressed about my future. My mental health was getting better, and I did not see the need to visit the doctor. However, I kept on taking my medication.

    d.On 9 September 2022, I received a letter from AAT requesting additional information. It triggered the past incidents and I started to regret about the time when due to lack of information I was not able to extend my visa on time. I am now having similar patterns of overthinking, anxiety, and mental illness.

    e.I have booked an appointment on 18^th Nov 2022 attached is the booking reference. I am hoping to recover fully from the mental illness and complete my degree so that I can return home happily and be in that mental state where I won’t have any suicidal thoughts or any depression which can lead to great danger for me.

18. At hearing the applicant gave evidence that he has a mother, father and brother who reside in Nepal. He shares a good relationship with them and remains in constant contact. The applicant has not seen his family in approximately six years. The applicant gave evidence that his parents provide him with financial support. The Tribunal Member asked the applicant what family if any, he has in Australia and their migration status. The applicant stated he has an uncle who is a permanent resident and married, with a one-year-old child. The applicant gave evidence that he is single and has never been married.

19. The applicant has no assets in Australia and does not have a driver’s licence. The applicant currently rents a townhouse with three friends paying $250 per fortnight. He stated the lease has been extended to March 2023. The applicant currently works in a mill factory, undertaking casual labour five to six days per week earning $800 to $1200. The applicant confirmed he was never employed in Nepal, as he was a student before travelling to Australia. The Tribunal Member asked the applicant what his goals and life aspirations were in Australia. The applicant confirmed he wished to complete his studies in Business Information Systems at the Australian Catholic University. He explained he only has five subjects remaining of his degree which would take between six to 12 months to complete. He stressed that he did not have a desire to stay indefinitely in Australia, but wished to complete his studies, to make his family proud.

20. As outlined in the s.359A invitation the applicant was an unlawful non-citizen for over five months. At hearing, the Tribunal Member asked the applicant why he had remained as an unlawful non-citizen for this time and not made efforts to regularise his migration status. The applicant claimed he was unlawful during the COVID-19 pandemic and did not know how to apply for a visa, erroneously believing his university would extend his visa. The applicant claimed that he has complied with all visa conditions attached to his previous substantive visa and subsequent bridging visas.

21. The Tribunal Member asked the applicant how he would survive if granted a Medical Treatment visa which has a ‘no work’ condition. The applicant claimed that he would be financially supported by his family in Nepal and uncle in Australia. He referred to previous financial assistance from them during the COVID-19 pandemic and paying his university tuition fees. The applicant’s uncle gave evidence of the same, stating he would meet all the applicants medical and living expenses and provide accommodation if necessary. The applicant’s uncle earns $150,000 as a cyber security manager.

22. The Tribunal Member noted that the applicant told his psychologist Stephen Sutton that he wished to stay in Australia to recommence and complete his university studies including undertaking two semesters studying five subjects.[3] The applicant confirmed this information was correct and that it was his intention to finish his studies if granted the Medial Treatment visa which would take six and 12 months. The Tribunal Member explained that the Medical Treatment visa is subject to condition 8201, a three-month maximum study limit. This information was relevant to the review and would be a reason or a part of the reason for affirming the decision under review because the applicant's evidence indicated that the applicant did not intend to comply with the conditions to which the visa would be subject pursuant to cl.602.215(1)(b). The applicant stated that his family had a dream to see him graduate and had spent a lot of money on his education and that he was a good student. The Tribunal Member explained that although she had great sympathy for the applicant, the Medical Treatment visa did not permit the applicant to study more than three months.

    [3] Delegate’s decision record, psychological report and applicant’s response to s.359A and s.359(2) invitation

23. The Tribunal Member told the applicant that the Tribunal Member had reviewed the applicant’s migration history which suggested that he wished to stay permanently in Australia and would not leave. The applicant denied that he wished to stay permanently in Australia, claiming he only wanted to finish his studies and graduate and would return to Nepal. He claimed he had not returned to visit his parents after his visa expiry due to the COVID-19 pandemic and consequential border restrictions.

24. The applicant gave evidence that he is seeking the Medical Treatment visa for depression and anxiety. Since lodging his application he has undertaken three counselling sessions with Dr Rajendran but ceased them due to ‘feeling better’. He has also been prescribed with anti-depressants. The applicant claimed he needed further time to seek counselling. The Tribunal Member asked the applicant what had prevented the applicant from seeking treatment in the intervening period since the time of application. He stated that there was ‘no need’ for him to consult with his medical practitioners as he was ‘doing good’. He confirmed he has never presented to hospital or called emergency services for his mental health issues.

25. The Tribunal Member asked the applicant that given he applied for the Medical Treatment visa on 15 April 2021, why he still needed the visa when he had had one year and six months to address his medical issues. The applicant claimed that he had ‘not fully recovered’ and that the Tribunal’s invitation letter had retriggered his anxiety and depression and that he had made an appointment to see Dr Rajendran on 18 November 2022. The Tribunal Member asked the applicant why he had stayed beyond the requested time of 22 April 2022 and not departed Australia. The applicant stated that he was hoping to get his ‘study rights back…for no other reason’.

26. The Tribunal Member asked the applicant why he could not receive medical treatment including counselling and antidepressants in Nepal and what evidence he had in support. The applicant replied that the psychologists would not know his medical history which would be detrimental to his health. He also stated that the medical treatment available in Nepal was not to the same standard as Australia and that he wished to complete his treatment in Australia and return to Nepal after he was fully recovered. He conceded he did not have any evidence to support these claims. He stated if he had to return to Nepal, he would seek medical treatment in India rather than Nepal.

27. The applicant confirmed that he is double vaccinated. The Tribunal Member asked the applicant what arrangements he had made to return home to Nepal. The applicant confirmed he had not made any arrangements and was awaiting the outcome of his Tribunal hearing. The Tribunal Member asked the applicant how his condition prevented him from leaving Australia. The applicant conceded that his medical condition did not prevent him from departing.

28. The applicant's uncle gave evidence that the applicant wishes to recommence his studies and finish his degree. He stated the applicant is depressed because he faces the prospect of returning to Nepal without completing his studies. The Tribunal Member explained to the applicant’s uncle that the Medical Treatment visa does not permit the applicant to study more than three months, and that the applicant’s intended studies exceeded this duration. The applicant’s uncle asked that the applicant be permitted to remain in Australia to undergo medical treatment so that he was in a ‘good position to return to Nepal’.

    FINDINGS and REASONS

29. In the present case, the applicant seeks the visa for the purposes of medical treatment for his anxiety and depression. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

1. The Tribunal has considered the totality of the evidence, including the applicant’s evidence at hearing, response to the s.359A and s.359(2) invitations and the information contained in the Departmental and Tribunal files.

2. There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicant’s last substantive visa, or any bridging visas held. The Tribunal further accepts the applicant will be financially supported by the applicant's family and uncle and therefore comply with the no work condition. However, the Tribunal is not satisfied that the applicant will comply with the no study condition. During the hearing the applicant repeatedly referred to his desire and intention to complete his studies. This was also consistent with previous representations made to consultant psychologist Mr Sutton, in addition to the applicant’s s.359A and s.359(2) response. Regrettably it was apparent that the applicant has been ill advised and was under the mistaken belief that he would be permitted to study more than three months whilst on a Medical Treatment visa. Accordingly, the Tribunal is not satisfied that the applicant would comply with the no study condition cl.602.215(1)(b).

3. The Tribunal has considered all relevant matters. The Tribunal has had regard to the applicant’s migration history. Although the Tribunal Member was originally concerned by the applicant’s visa history which disclosed that the applicant has been onshore for over five years, including five months as an unlawful non-citizen, after considering the applicant’s oral evidence, in particular, that he intended to extend his student visa, but due to a misunderstanding he missed the deadline, the Tribunal places limited weight on the applicant’s migration history. The Tribunal also accepts the applicant’s evidence that he did not return to Nepal after the expiry of his student visa due to the COVID-19 travel restrictions and border closures. The Tribunal regards the period of the applicant’s unlawfulness as an aberration.

4. The Tribunal accepts that the applicant has in the past suffered from anxiety and depression, largely due to his migration predicament. The Tribunal further accepts that the applicant has recently relapsed and has an upcoming consultation appointment. However, the Tribunal notes that since the time of application, that the applicant has done very little by way of seeking medical treatment. The Tribunal also notes that the applicant has been largely stable and in fact considered himself ‘better’, ceasing his counselling after three sessions. Overall, the Tribunal considers the paucity of the medical evidence indicates that the applicant did not apply for the visa for medical treatment but did so to maintain an ongoing residency in Australia whilst harbouring hopes of recommencing his university studies. This is further supported by his evidence and his uncle’s evidence that the applicant wishes to finish his studies.

5. The Tribunal has taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa E (Subclass 050) well beyond the time he had requested (22 April 2022), in his visa application for medical treatment, over six months, by virtue of the time it has taken to bring this matter to review. Consequently, this raises doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted but intends to continue an ongoing residence in Australia.

6. Further, there is no evidence that the applicant could not receive medical treatment in his home country Nepal. The Tribunal also notes that there is no evidence before the Tribunal that the applicant is not able to purchase medication such as anti-depressants.

7. There is no information or evidence before the Tribunal regarding the applicant’s personal and economic circumstances that would encourage him to return to his home country at the end of the proposed stay. For example, the applicant’s family composition, his relationship with his family members, the applicant’s job prospects in Nepal or assets. While the Tribunal accepts that the applicant has some remaining family in Nepal, the applicant has not returned to visit them since his arrival in Australia on 22 July 2017 (excluding the time of border closures due to the COVID-19 pandemic). The Tribunal also notes the applicant has some family in Australia who have and are prepared to provide the applicant with significant financial and other support. The applicant also has no employment record in Nepal, whilst the applicant has gainful employment in Australia. Further, the Tribunal notes the applicant is now 24 years of age having first come to Australia as a 19-year-old. The applicant has spent over half a decade in Australia, a significant period of time. The Tribunal considers that the applicant has now spent a good part of his adult years in Australia and that starting over in Nepal will present challenges to the applicant. On the basis of the evidence at hearing and visa application information, the Tribunal does not have confidence, and is not satisfied, that the applicant’s personal circumstances are conducive to him returning to Nepal.

8. Overall, the Tribunal is not satisfied that the applicant will comply with the no study condition. The evidence also indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

9. Given the above findings, cl.602.215 is not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa.

   decision

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

    Naomi Schmitz
    Member