Chhantyal (Migration)

[2022] AATA 2400

Chhantyal (Migration) [2022] AATA 2400 (30 May 2022)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gaumaya Chhantyal

CASE NUMBER:  2013836

HOME AFFAIRS REFERENCE(S):          BCC2020/1929481

MEMBER:Naomi Schmitz

DATE OF DECISION:  30 May 2022

DATE CORRIGENDUM

SIGNED:1 June 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.In paragraph five, in the first line, replace ‘2020’ with ‘2022’; and

2.In paragraph 31, in the fifth line, remove the apostrophe appearing immediately at the end of the word ‘Nepalis’.

Naomi Schmitz
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gaumaya Chhantyal

CASE NUMBER:  2013836

HOME AFFAIRS REFERENCE(S):          BCC2020/1929481

MEMBER:Naomi Schmitz

DATE:30 May 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 30 May 2022 at 1:44pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – visa history, long stay and unsuccessful application for permanent visa – court appeal against refusal of previous medical treatment in progress – limited information provided about condition and treatment and period of proposed treatment now passed  – COVID-19 restrictions, finances and unrelated physical condition – treatment available in home country – strong support network in Australia and poor relationship with family in home country – no arrangements made to pay debt to Commonwealth – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(6), 602.215, 602.217(1), Schedule 4, criterion 4004

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 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 20 July 2020. 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. On 21 August 2020 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.

4. On 11 September 2020 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 1 April 2020 the applicant was invited to appear before the Tribunal on 21 April 2022 and requested to provide information pursuant to s.359(2) by 19 April 2022. The applicant did not provide a response within the time limit and the hearing was cancelled on 20 April 2022.

6. The Tribunal further considered its letter of 1 April 2022 and was not satisfied of its validity. For these reasons the Tribunal on 5 May 2022 rescheduled a hearing for 20 May 2022 at 9:30am.

7. The applicant appeared before the Tribunal on 20 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

8. The hearing was originally listed for one hour, however, was extended to two hours to allow the applicant to complete her evidence. The Tribunal is satisfied that the applicant was accorded with procedural fairness and given a sufficient opportunity to present her case.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

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

11. 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.

12. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born [in] 1987 and is thus currently 35 years of age. The applicant has applied for one permanent visa while in Australia, namely a [Specified] visa which was refused. 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.

13. The delegate’s decision record detailed the applicant’s migration history.

14. The applicant first arrived in Australia on 13 July 2008 as the holder of a Student (Subclass 572) visa.

15. Whilst onshore the applicant applied for and was granted a further Student (subclass 572) visa on 18 August 2010.

16. The applicant has only departed Australia once from 27 March 2012 until 26 April 2012. Since this time she has remained continuously onshore in Australia until the present day.

17. On 8 November 2012 the applicant made an application for a [Specified] visa. On 20 December 2012 the delegate refused the applicant’s application for a [Specified] visa.

18. On 8 January 2013 the applicant sought review of the delegate’s decision. On 13 May 2014 the Tribunal affirmed the delegate’s decision to refuse the visa.

19. On 5 June 2014 the applicant unsuccessfully sought judicial review in the Federal Court.

20. On 19 September 2016 the applicant sought further judicial review at the Full Federal Court. This was unsuccessful with a Minister win on 24 February 2017.

21. On 23 March 2017 the applicant made an application for a Medical Treatment (subclass 602) visa that was refused on 3 April 2017.

22. The applicant remained in Australia and sought administrative review at the Tribunal. On 22 September 2017 the Tribunal affirmed the delegate’s decision. There is currently an ongoing case before the Full Federal Court in relation to the department's decision to refuse the Medical Treatment (subclass 602) visa.

23. On 20 July 2020 the applicant made this second request for a Medical Treatment (subclass 602) visa.

24. On 22 July 2020 the applicant was issued with a Bridging visa C which has an 8101 ‘no work’ condition.

    VISA APPLICATION and EVIDENCE AT HEARING

25. The applicant is a citizen of Nepal, born in Myagdi, Gandaki, Nepal. In the applicant’s visa application she claimed her stay would be self-funded ‘I will borrow the money from friends and relatives when I require more money’. The applicant wrote the purpose of her stay in Australia was medical treatment for approximately one year from 15 August 2020 until 15 August 2021. The applicant claimed she was seeking medical treatment for ‘depression’.

26. Attached to the visa application was a 1507 Form signed by Dr Andrew Harris on 8 July 2020. It detailed the medical condition requiring treatment as ‘depression’. The treatment information was ‘review with psychologist’ and ‘consider anti-depressant’. No other medical information was provided with the application or in connection with the review.

27. The applicant gave evidence that she is currently residing with her friend’s brother at an apartment in Campsie, New South Wales (NSW), Australia. The lease is in her friend’s brother’s name and she lives at the property for ‘free’. She claimed to have stopped giving him money from June 2021 due to financial pressures. The applicant has no assets in Australia.

28. The Tribunal Member asked the applicant about her family in Nepal and her relationship with them. The applicant stated she has a mother and a father, but that they had separated when she was a child. She does not have a good relationship with her parents and is estranged from them. She stated her mother is conservative and disapproved of her marriage to her ex-husband in Nepal due to it being an ‘inter-cast marriage’. As a result, she ‘ran away from home’. She stated her father abandoned her as a child and remarried, but that she later re-connected with him when she married her ex-husband. She explained her relationship subsequently deteriorated and that her father assaulted her, was an ‘alcoholic’ and since travelling to Australia has had no contact with him. The applicant has a sister and a brother, but did not detail her relationship with them.

29. The Tribunal Member asked the applicant what family she had in Australia and their migration status. The applicant stated that she has two cousins who reside in Lakemba. The Tribunal understands that Lakemba is a neighbouring suburb to Campsie and within three kilometres from the applicant.[1] The applicant stated that her cousins were permanent residents, but did not know how they achieved this migration status. She stated that she has contact with her cousins and that they provided her with financial assistance during the COVID-19 pandemic. The applicant claimed to be single and have no contact with her ex-husband who she separated from in February 2015 or 2016.

    [1]

30. The Tribunal Member asked when the applicant last worked in Australia and about her employment record in Nepal. The applicant claimed she last worked in Australia two years ago as a cleaner. She claimed she did not currently work due to having no work rights and instead spent her days at home cooking food. The applicant confirmed she never worked in Nepal.

31. The applicant stated that she has never been an unlawful non-citizen in Australia. She stated that she had never breached any conditions of her visa. The Tribunal Member asked how she had managed to survive the past two years without resorting to work given her bridging visa has a ‘no work’ condition. The applicant claimed to receive money from her cousins and friends and have support from the Nepalese community, ‘Nepalis’ look after one another’. The Tribunal Member explained that if the applicant were to be granted a Medical Treatment visa, any visa would be subject to a no work condition and queried how she would survive in the future if she could not work. She claimed she could ‘borrow more money’ from ‘closest people let’s see who will help me’ and would pay them back after she returned to Nepal and send them money.

32. The Tribunal Member told the applicant that it had reviewed the applicant’s migration history which suggested that she wished to stay permanently in Australia and would not leave. The applicant denied having such an intention and claimed she genuinely sought medical treatment.

33. The applicant gave evidence that she is suffering from depression. The Tribunal Member asked what medical treatment the applicant had received and what future medical treatment arrangements she had made. The applicant confirmed she had received no medical treatment, had done nothing since obtaining the medical referral (Form 1507) and had no future medical arrangements due to ‘money problems’ and ‘COVID-19’.

34. The Tribunal Member asked the applicant why she still needed the visa given she had approximately one year and 10 months since the time of application, 20 July 2020 to seek medical treatment. The Tribunal also asked the applicant why she had remained in Australia an additional nine months, despite writing that she wanted to remain in Australia until 15 August 2021 for medical treatment. In relation to both questions the applicant replied that she had not sought treatment due to COVID-19 lockdowns, money issues and having an ovarian cyst which involved two surgeries that were cancelled. The Tribunal Member noted the additional medical condition, the ovarian cyst and sought clarification as to whether the applicant sought the Medical Treatment visa for her cyst and whether the applicant had any evidence to substantiate her claims. The applicant replied in the negative, but claimed to have had a phone call with a hospital on the morning of the hearing.

35. The Tribunal Member asked how her depression prevented her from leaving Australia to obtain treatment in her home country. The applicant did not answer the question. The Tribunal Member asked why the applicant could not receive medical treatment for her depression in Nepal. The applicant replied ‘I can’ but that her preference was to remain in Australia for treatment as she wanted to improve her mental state before returning home. The applicant confirmed that she is triple vaccinated, but had not made any preliminary arrangements to return to Nepal because she wanted to be ‘strong’ before she returns.

36. The Tribunal Member asked the applicant given her [Specified] visa had been refused, and given a Medical Treatment visa is temporary, what her plans were after her Medical Treatment visa expires. The applicant claimed she would return to Nepal.

37. The Tribunal explained that as a relevant factor it may consider the situation of a visa applicant’s home country, Nepal, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which discusses the political instability, ethnic conflicts and natural disasters in Nepal which have negatively impacted on the economy. Nepal is considered among the poorest and least developed countries in the world. Nepal’s health system is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of health infrastructure and access to health services. Health care services are generally considered inadequate by international standards. The Tribunal Member contrasted Nepal’s situation with Australia, which is stronger economically, politically stable and has a well-resourced health care system and asked in light of these differences, why this would not be a disincentive to return to Nepal.[2] The applicant replied ‘everyone knows Australia is far better than Nepal’ including economically, politically and the health care system.

    [2] Department of Foreign Affairs and Trade Country Information Report – Nepal dated 1 March 2019

38. Pursuant to s.359AA the Tribunal Member stated that departmental records showed that the applicant had an outstanding Commonwealth debt in the sum of $13,887 as a result of various unsuccessful appeals. This information was relevant to the review because the outstanding debt to the Commonwealth would be a reason, or part of the reason for affirming the decision under review because cl. 602.217(1) of the Migration Regulations 1994 (the Regulations) requires that an applicant satisfy Public Interest Criterion 4004. This requires that an applicant not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. If an applicant does not satisfy cl. 602.217(1) of the Regulations an applicant cannot be granted the visa. The applicant stated she had nothing to say. When given a final opportunity to address the Tribunal she stated she knew she had to pay the outstanding debt and ‘I don’t have any intention to leave without paying’. When asked how she would repay the debt she claimed she would borrow the money.

    FINDINGS AND REASONS

39. In the present case, the applicant seeks the visa for the purposes of seeking medical treatment for ‘depression’. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

40. 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. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa.

41. The Tribunal has also considered other relevant matters. The applicant first arrived in Australia on 13 July 2008. She departed briefly for one month and has remained onshore continuously since 26 April 2012, approximately 10 years. Overall, the applicant has resided in Australia for approximately 13 years and nine months, a significant period of time which the Tribunal places adverse weight on.

42. This is further supported by the applicant’s migration history, which indicates that the applicant has applied for permanent residency, namely a [Specified] visa and subsequently sought avenues of review including administrative and judicial review which were unsuccessful. Since losing her appeal in the Full Federal Court in February 2017, she has applied for a succession of temporary visas, including two Medical Treatment visas. The applicant’s conduct in seeking a permanent visa indicates that she seeks to remain permanently or indefinitely in Australia. The Tribunal places adverse weight on the applicant’s migration history.

43. The Tribunal has also considered the applicants claims regarding medical treatment in Australia. The Tribunal accepts that the applicant is depressed; however the applicant has not provided any current or other relevant evidence which indicates that she is undergoing medical treatment and that she intends to stay temporarily in Australia for the purposes of medical treatment.

44. The applicant filed her application on 20 July 2020. Approximately one year and nine months have passed since the application was submitted and no updates on treatment have been provided. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 signed on 8 July 2020. Over one year and nine months have passed since the Form 1507 was completed and no updates on treatment have been provided. The Tribunal has had regard to the applicant’s claims that she has been unable to obtain treatment for her depression due to COVID-19 lockdowns, money issues and being occupied with other health issues, namely an ovarian cyst, however, does not accept the applicant’s claims.

45. There is no evidence before the Tribunal that COVID-19 restrictions have prevented the applicant from seeking treatment, in fact, the applicant gave viva voce evidence that she had not taken any active steps to obtain any medical treatment.

1. The Tribunal also has serious doubts that the applicant’s alleged ovarian cyst, proposed surgeries and surgery cancellations have prevented her seeking treatment for her depression. The Tribunal found the applicant’s evidence vague and unsatisfactory in relation to the alleged medical condition (cyst), surgeries and cancellations. When asked for detail the applicant was evasive and referred to a mere phone call with an unknown hospital on the morning of the hearing and was unable to provide any medical evidence such as medical scans or a medical booking from a treating doctor. The Tribunal was also perplexed as to why the applicant would not be seeking the Medical Treatment visa for her cyst given her condition remains unresolved and raises doubts as to the truthfulness of the applicant’s evidence. Even if the Tribunal were to accept that the applicant has an ovarian cyst and cancelled surgeries, there is no evidence before the Tribunal to indicate how this has impacted upon the applicant’s ability to obtain treatment for her depression.

2. The Tribunal has also had regard to the applicant’s claims of being unable to afford medical treatment, but when considered with the applicant’s evidence of being financially supported by family, friends and the Nepalese community over a two year period, including paying for her food, accommodation, living expenses and a nail manicure, the Tribunal does not accept that a lack of finances have inhibited her from obtaining medical treatment. The Tribunal considers the paucity of 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.

3. The Tribunal has also taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa 030, well beyond the time she had requested (15 August 2021), approximately nine months, by virtue of the time it has taken to list this matter for review and despite this additional time, she had made no efforts to seek medical treatment. Accordingly, this raises doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is medical treatment, but intends to continue an ongoing residence in Australia.

4. The Tribunal has also considered the applicant’s personal circumstances in Nepal and Australia and is not satisfied that the applicant genuinely intends to stay temporarily in Australia. On the applicant’s evidence she was physically abused by her father and she ran away from her mother who disapproved of her inter-cast marriage and has had no contact with them for approximately 14 years. The applicant has also never been employed in Nepal. In contrast, the applicant has two cousins in Australia who have provided her financial support during the COVID-19 pandemic. She also has a strong network of friends and the Nepalese community who have provided her with significant financial assistance over a protracted period of time whilst she has had no work rights. She claims to have their continued financial support into the future. In light of the large network of financial support in Australia and poor relationship with her family in Nepal, the Tribunal is not satisfied that the applicant would be motivated to return to Nepal after her proposed medical treatment. This is further supported by the applicant’s evidence of Australia being ‘far better than Nepal’ and hence an incentive to remain. The Tribunal further notes that the applicant is now 35 years of age having first come to Australia as a 21-year-old. The applicant has spent a good part of her adult years in Australia and that starting over in Nepal will present challenges to the applicant. This is particularly so, given the applicant has no employment record in Nepal.

5. Further there is no evidence that the applicant could not seek medical treatment in her home country. In fact the applicant conceded she could get medical treatment in Nepal, but that it was her preference to remain in Australia for treatment. The Tribunal has also had regard to the applicant’s evidence at paragraphs [32], [35] and [36] that she genuinely wants to remain in Australia temporarily for medical treatment to get ‘strong’ before returning to Nepal, however when considered cumulatively with all the evidence, in particular the strong financial support by family, friends and the Nepalese community in Australia, the applicant’s migration record, her personal circumstances, the country information above and her lack of efforts to get medical treatment and return home, the Tribunal is not persuaded that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, but intends to maintain an ongoing residence in Australia. The Tribunal also found the applicant’s evidence to be vague and unsatisfactory. Overall, the Tribunal finds that the conditions in Australia are such that they might encourage the applicant to remain here.

6. Overall, the evidence 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.

7. 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.

8. As the Tribunal is not satisfied that the applicant meets cl.602.215, it is unnecessary for the Tribunal to decide if the applicant satisfies cl. 602.217(1) of the Regulations.

   decision

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

   Naomi Schmitz
   Member