CHHANTYAL (Migration)

[2018] AATA 3326

CHHANTYAL (Migration) [2018] AATA 3326 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs BISHNU CHHANTYAL

CASE NUMBER:  1718916

DIBP REFERENCE(S):  BCC2017/2667932

MEMBER:Linda Holub

DATE:16 August 2018

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 16 August 2018 at 12:05pm

CATCHWORDS

Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Stress related illness – No financial capacity to fund medical treatment – Decision under review affirmed

LEGISLATION
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 Immigration on 1 August 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 July 2017 and provided the Tribunal with a copy of the Department’s Decision Record. 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 (the Regulations).

3. The delegate refused to grant the applicant the visa because the delegate was of the view the applicant is attempting to obtain a further Medical Treatment visa to remain in Australia, to maintain ongoing residence in Australia, to continue working in Australia, and to access services in Australia.  

4. The applicant appeared before the Tribunal on 15 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. At the commencement of the hearing the Tribunal explained to the applicant that although her husband was included as a secondary applicant on the review application, only one applicant can be listed in the review application on this visa class.  It was explained to her that the review being undertaken was only in respect of the Department’s refusal of her visa application. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 satisfies the requirements of cl.602.215 which requires that he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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

1. Clause 602.215 (as extracted in the attachment to this decision) 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).

2. The applicant is a 25 year old married, Nepalese national.  At the time of application she sought the visa for the period 15 July 2017 until 15 July 2018.  In response to question 18 on the application form about the medical treatment she had arranged in Australia, she wrote that she would provide the details once she has been able to consult with a medical professional.  On Form 1507 of the application, the medical practitioner wrote that the medical condition requiring treatment is depression and stress related and that she was referred to a psychologist.

10) The applicant has not provided the Department or the Tribunal with any evidence in relation to what medical treatment she sought or is seeking or the estimated cost of the treatment or her capacity to pay for the treatment or why she required a visa for one year.

11) At hearing the Tribunal asked the applicant what details she has about the medical treatment.  She responded that she does not have the details because he did not go to see a doctor. She stated that she gathered information but because of her financial situation she was unable to actually seek treatment.  She stated that she became depressed when she had a still-born birth.  She could not recollect when she was pregnant or when she lost the baby.

12) The Tribunal asked her whether there was any prospect of her financial position changing so that she could undertake treatment.  She responded in the negative.  The applicant gave oral evidence that neither she nor her husband work.  She stated that they live with her cousin and they obtain money to support themselves from friends and relatives. 

13) The applicant stated that she cannot return to Nepal because the Maoists might want to kill her.  She stated that she had been a member of Congress and that the Maoists wanted her to join them.  When asked when she was a member of Congress she first stated she could not remember the date and responded it was around the year 2000 when she was around 16 or 17 years of age.  She stated that she was a member for approximately one year.  She did not answer when asked why she stopped being a member.  She was asked if she had any evidence of her claims and responded that she did not.

14) The Tribunal again explained to her of the purpose of the visa and that while it had not made a decision, given her evidence that she was not in a position to undertake medical treatment in the future, it appeared she ineligible for the grant of the visa.  The Tribunal provided her with an opportunity to respond and add anything further.  She did not do so.

15) The Tribunal discussed with the applicant her migration history, as outlined in the Department’s Decision Record and asked her if it was an accurate reflection.  She agreed it was.  The Tribunal asked the applicant why she had remained in Australia unlawfully.  She responded that she does not have anything to say.

16) Having considered all the evidence, the Tribunal has concerns about whether the applicant’s intentions are genuine.  The Tribunal finds that she has not previously complied with Australia’s immigration laws.  The Tribunal could not be satisfied that the applicant would be at risk of harm if she returned to Nepal given the lack of any evidence regarding her claims.  The Tribunal finds that the applicant does not have the financial capacity to fund any medical treatment.  The Tribunal is not satisfied that she genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted.  

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

Is the applicant unfit to depart Australia?

17) 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.

18) There is no suggestion that any of the other alternative sub criteria are relevant in this case.

19) The records of the Department indicate that the applicant was in Australia at the time of application on 25 July 2017.  Accordingly, the Tribunal finds that she satisfies the requirements of cl.602.212(6)(a).  The evidence before the Tribunal indicates that she was born in May 1993 and is therefore 25 years of age.  Accordingly, the Tribunal finds that she has not turned 50 years of age and does not satisfy the requirements of cl.602.212(6)(b).  As she not satisfy the requirements of cl.602.212(6)(b), she is unable to meet the requirements of cl.602.212(6) in its entirety.

20) Given the above findings, the applicant does not meet the requirements for the grant of the visa.  The decision under review must be affirmed.

DECISION

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

Linda Holub
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).