Boutros (Migration)

[2021] AATA 5262

Boutros (Migration) [2021] AATA 5262 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marwan Hanna Boutros

CASE NUMBER:  1912194

HOME AFFAIRS REFERENCE(S):          BCC2019/1727099

MEMBER:Wendy Banfield

DATE:8 November 2021

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 08 November 2021 at 4:24pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – not unfit to depart – genuine temporary entrant – treatment for mental health issues – depression and anxiety – concerns about the medical assessment of the applicant – immigration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 2 May 2019 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 April 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 the delegate was 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 clause 602.215.

   Background

4. The applicant is a citizen of Lebanon and is currently 44 years old. He first arrived in Australia on 23 February 2006 as the holder of a Temporary Work (Skilled) (class UC) (subclass 457) visa and has not departed since. Since his visa ceased on 25 November 2007 the applicant has held a series of Bridging visas.

5. The Department of Home Affairs decision record provided in evidence sets out the applicant’s immigration history in Australia as follows:

   ·     On 23 February 2006, the applicant arrived in Australia as the holder of a Temporary Work (Skilled) (class UC) (subclass 457) visa.

   ·     On 28 April 2008, the applicant lodged for a Temporary Work (Skilled) (class UC) (subclass 457) visa. This was refused on 23 May 2008. On 05 June 2008, the applicant sought a review of the decision at Migration Review Tribunal (MRT). The decision was affirmed by the MRT on 08 March 2010.

   ·     On 20 January 2012, the applicant lodged for a Combined Partner (class UK/BS) (subclass 820/801) visa. This was refused on 02 July 2013. On 19 July 2013, the applicant sought a review of the decision at Migration Review Tribunal (MRT). The decision was affirmed by the MRT on 25 August 2014. On 13 November 2014, the applicant lodged an appeal at the Federal Court which resulted Minister Win being recorded on 16 September 2016. On 30 September 2016, the applicant lodged an appeal at the Full Federal Court which resulted in Minister Win being recorded on 17 February 2017.

   ·     On 22 October 2014, the applicant applied for Ministerial Intervention under Section 351and this was determined to be Inappropriate to Consider on 21 October 2014.

   ·     On 23 March 2017, the applicant applied for Ministerial Intervention under Section 351 and this was determined to be Inappropriate to Consider on 27 March 2017.

   ·     On 04 April 2017, the applicant lodged for a Medical Treatment (class UB) (subclass 602) visa. This was refused 07 April 2017. On 28 April 2017, the applicant sought a review of the decision at Administrative Appeals Tribunal (AAT). The decision was affirmed by the AAT on 24 October 2017. On 20 November 2017, the applicant lodged an appeal at the Federal Court which resulted in a Minister Win being recorded on 10 September 2018. On 21 September 2018, the applicant lodged an appeal at the Full Federal Court which resulted in a Minister Win being recorded on 05 February 2019.

   ·     The applicant currently holds a Bridging E (class WE) (subclass 050) visa.

   ·     During the applicant’s time in Australia, the applicant has been an unlawful non-citizen for 101 days.

6. In his application, the applicant claimed he was suffering from mental health issues including anxiety and depression. He provided a Form 1507 Evidence of intended medical treatment dated 9 April 2019 from Dr Ashraf Sakla stating the applicant has been referred to a psychologist for counselling for anxiety and depression. The applicant sought to be able to remain in Australia to continue his treatment until 8 April 2020.

7. The delegate who considered the application noted the following:

   ·     There was no information which indicated the applicant was gravely ill or receiving intensive or critical care which required him to remain in Australia.

   ·     The information provided did not indicate the treatment the applicant was receiving was unavailable outside Australia.

   ·     In the Medical Treatment visa application, the applicant did not provide sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future.

   ·     Departmental records confirm that they have unsuccessfully applied for a permanent visa onshore and have taken every opportunity to present their case or circumstances for review. The applicant’s adverse migration history strongly indicates that they intend to continue to seek a visa pathway to remain in Australia on a permanent basis.

   ·     At the time of decision, the applicant had not presented any personally compelling or exceptional circumstances to warrant departure from the legislative requirement of the genuine visit criterion which is mandatory for the grant of a Medical Treatment visa; and

   ·     It appeared that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

8. Taking these matters into account, the delegate found that the applicant did not genuinely intend to remain temporarily in Australia. The delegate found the applicant did not meet the criteria in clause 602.215 and refused the application.

9. The applicant did not provide any new submissions to the Tribunal prior to the hearing.

10. The applicant appeared before the Tribunal on 25 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

    Evidence at the hearing

11. The applicant confirmed he was born in 1977 and is 44 years old. He advised he first arrived in Australia on 23 February 2006 for work and at the time, held a Subclass 457 Temporary Work visa. The applicant said he was applying for a Subclass 602 medical treatment visa because there is no medicine or treatment available in Lebanon. He also advised his parents are in Australia and if he has to return to Lebanon, he has no one there. When asked about the medical treatment he claims to need in Australia the applicant said he has “a lot of diseases”. When asked to explain the applicant referred to constant headaches of unknown cause. He said he has not been to the doctor in six months. Regarding treatment any treatment for headaches the applicant stated he is taking Nurofen for the headaches. The applicant advised he does not have any money to pay for medical treatment. According to the applicant he is supported in Australia by his parents. He also has three siblings.

12. The Tribunal asked the applicant about any medical treatment in future. He said that if he is permitted to work, he will pay for treatment. The applicant then stated his pain would go away if he is granted a visa. The applicant was asked if he is intending to return to Lebanon. He replied that he would like to but then repeated his claim that he does not have anyone there. The Tribunal asked about his evidence to the Department that indicated he was referred to a psychologist. The applicant said he did not go but is still planning to. He was asked why he cannot access any medical treatment he may require in Lebanon. The applicant repeated his earlier claims that in Lebanon there is no food or medication. He referred to having seen the situation on the news. The applicant concluded by saying his situation is very bad and he needs a visa for two to four years.

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 is medically unfit to depart Australia and, if he is not, whether he genuinely intends to remain in Australia temporarily for the purpose of the visa.

    Is the applicant unfit to depart Australia?

15. An applicant is required to meet the criteria in clause 602.215 unless they meet the criteria in clause 602.212(6). Clause 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.

16. The applicant is 44 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 clause 602.212(6) are not met.  Accordingly, the applicant is required to meet the criteria in clause 602.215(1) and the exemption in clause 602.215(2) does not apply.

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

18. 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. This requirement will not apply if the applicant is medically unfit to depart Australia as described in clause 602.212(6). As set out above, the applicant does not meet the criteria in clause 602.212(6).

19. The basis of the applicant’s claim to meet the criteria in clause 602.212(2) to be granted a Medical Treatment visa is on the grounds that he seeks to obtain medical treatment for mental health issues associated with depression and anxiety as referred to in the Form 1507 Evidence of intended medical treatment dated 9 April 2019 completed by Dr Ashraf Sakla.

20. The Tribunal has significant concerns about the medical assessment of the applicant. There is no evidence regarding the type of assessment the applicant underwent or any indication of the type of treatment he was has been given. There is also no evidence regarding the number of medical consultations the applicant had with his medical practitioner. While the applicant gave evidence that he was referred to a psychologist, he also said he did not follow up the recommended treatment and has not visited a mental health professional. He also advised he had not seen a doctor for six months. This is despite the applicant claiming in his application for a Medical Treatment Visa: “I suffer from mental health issues including depression I need therapy and I need weekly session cost up to 200$ per week.”

21. The applicant stated at the hearing that he has not been able to work and was therefore unable to pay for any treatment. However, the applicant declared in his application for a Medical Treatment Visa that he has savings and “all costs” in Australia are provided by another person, namely his brother. Despite this, the applicant appears not to have made any attempt to obtain medical treatment from his doctor or any other health professional.

22. The fact that since making the application for the Medical Treatment visa the applicant has not sought any medical treatment undermines the claims that he genuinely intends to remain temporarily in Australia for the purpose for which the visa is granted. During the hearing the applicant made a statement that his pain would go away if he is granted a visa. The applicant’s statement clearly indicates that his issues are concerned with his immigration status and his wish to remain in Australia. He indicated several times that he does not have anyone in Lebanon but has immediate members of his family in Australia. The applicant’s immigration history indicates an intention to remain in Australia and the presence of his parents and a sibling provides him with an incentive to want to extend his residency. 

23. If the applicant did require any medical treatment, there is nothing to indicate that he would not be able to consult an appropriately qualified medical practitioner in Lebanon for any treatment there. While the applicant made a general statement that there is no medicine or medical treatment available in his home country, he did not provide any independent evidence to support this claim. Country information indicates that in general terms, Lebanon’s health outcomes compare favourably with other countries in the region and with middle-income countries in other regions. The health system in the country is described as diverse with a mix of public and private providers. Although public health care is considered to be poor, treatment for medical conditions, including mental health issues does exist.[1] The Tribunal notes the applicant is of working age and there is nothing to indicate he would not be able to find employment and access any treatment he requires privately. The applicant’s extended residency in Australia and previous work experience while holding a Subclass 457 Temporary Work visa would be advantageous in this regard.

    [1] DFAT Country Information Report – Lebanon 19 March 2019

24. In all the circumstances, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal finds that the applicant is not seeking any medical treatment in Australia and is simply applying for the visa to be able to extend the time that he may reside in Australia and has not and will not be genuinely seeking any medical treatment.

25. Given the above findings, clause 602.215 is not met.

26. 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

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

    Wendy Banfield
    Member