Dinh (Migration)

[2022] AATA 592

Dinh (Migration) [2022] AATA 592 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trung Hieu Dinh

CASE NUMBER:  2011918

HOME AFFAIRS REFERENCE:               BCC2020/1779527

MEMBER:Rosa Gagliardi

DATE:10 March 2022

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 10 March 2022 at 9:45am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – substantial compliance with visa conditions – extended period of unlawful residence – family bereavement – completion of studies – maintaining ongoing residence in Australia – impact of the COVID19 pandemic – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
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 8 July 2020 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 22 June 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. The delegate refused to grant the applicant the visa because he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, to obtain medical treatment.

4. The applicant appeared before the Tribunal on 3 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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.

8. The Tribunal notes that the requirements above are cumulative.  While the applicant is in Australia, he has not as yet turned 50 years of age, being born in October 1996.  The Tribunal also does not have evidence before it that the applicant 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, the Tribunal does not have evidence that he 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.

9. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

10. In the present case, the visa applicant seeks the visa for the purposes of depression/anxiety.  This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

    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.

11. On 22 June 2020 the applicant lodged an application for a Medical Treatment visa.  The associated Form 1507 filled in by a medical practitioner and signed on 19 June 2020, states that the applicant required treatment for depression/anxiety.  The suggested treatment involved the applicant taking anti-depressants and obtaining psychological counselling. 

12. In making its decision the Tribunal has carefully assessed the following.

    Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any Bridging visa, held by the applicant was subject

13. The Departmental decision provided to the Tribunal for the purposes of the review, sets out the applicant’s migration history in Australia:

    -    The applicant arrived in Australia on 2 November 2015 as the holder of a Student (subclass 572) visa

    -    On 23 November 2017 the applicant’s student visa was cancelled due to non-compliance

    -    On 28 November 2017 the applicant sought review of the decision to cancel the student visa at the AAT

    -    The applicant remained in Australia as an unlawful non-citizen from 23 November 2017 until 4 June 2020.

    -    On 3 June 2020 the decision to cancel the visa was affirmed by the AAT

14. The Tribunal has taken into account that the applicant has been an unlawful non-citizen for several years.  At hearing the applicant stated that he had not been aware that he was unlawful and that he had assumed he had a Bridging visa E.  Nonetheless, the applicant stated at hearing that he had the wherewithal at some point to seek assistance from a migration agent who ultimately told him to lodge this Medical Treatment visa and then go on to lodge a Student visa. It is the responsibility of an applicant to ensure that their presence in Australia is, at all times regularised and if in doubt, the Tribunal can see few reasons cannot not confirm their status with the Department of Home Affairs. 

15. To compound the applicant’s non-compliance by becoming unlawful in Australia, the applicant had not been able to pursue his studies in Australia.  While the Tribunal might have sympathy for why the applicant could not continue (the applicant stated at hearing that his maternal grandfather had died, he could not follow the course he was studying, and he just gave up and did not attend class), the Tribunal notes that it had always been open to the applicant to return to his home country, Vietnam, on establishing that he was having difficulty meeting his student visa obligations.  It was also open to him to engage with the education provider to discuss his difficulties.

16. The Tribunal finds that the applicant’s past non-compliance, in particular in relation to being an unlawful non-citizen for a lengthy period, without attempting to regularise his status, points to the applicant being highly motivated to remain in Australia, regardless of his status.

    Whether the applicant intends to comply with the conditions to which the visa would be granted

17. At hearing the applicant stated that he really wanted to engage with his studies again and that he needed the Medical Treatment visa to deal with his depression and anxiety so that he could return to studying.  In effect, a migration agent told him that this is what he ought to do.  As the Tribunal put to the applicant at hearing, the Medical Treatment visa is not akin to a Bridging visa in that it does not lead to another visa.  The Tribunal is required to be satisfied that the applicant has a genuine intention to stay in Australia temporarily for the purpose for which the visa is granted, that is medical treatment (emphasis added). 

18. At hearing the applicant spoke about wishing to remain in Australia to salvage an education by way of a Diploma, and that his parents also wanted him to remain in Australia for such purposes.  He wanted to deal with his medical issues and then, when he was well enough, to return to his studies in Australia.  The Tribunal is concerned, however, that the applicant does not intend to abide by the conditions of his Medical Treatment visa, given his intention to remain in Australia to attain another visa. 

19. At the time the applicant applied for the Medical Treatment visa his avenues for remaining in Australia had narrowed and the Tribunal did not gauge any sense at hearing that the applicant had an intention to depart after any grant of a Medical Treatment visa.   As such, the Tribunal has concerns that the applicant on expiry of his Medical Treatment visa might once again remain in Australia unlawfully.

    Whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia

20. The Tribunal fully accepts that the applicant has suffered from depression and anxiety, particularly as it became evident to him that he was not able to achieve his goal of attaining a qualification and completing his studies in Australia.  The Tribunal, on the basis of limited evidence, also accepts that during the applicant’s studies his grandfather passed away in Vietnam and he struggled with his studies.  Nonetheless, the Medical Treatment visa cannot be used to remedy a Student visa cancellation – it is for the purpose of obtaining medical treatment.  The issue of whether the visa applicant’s student visa should have been cancelled has been ventilated at the AAT as previously constituted.

21. The Tribunal considers that the applicant is highly motivated to maintain ongoing residence in Australia to study.  On the basis of the applicant’s past behaviour in trying to remedy his situation, the Tribunal considers that the applicant does not have a strong incentive to seek medical assistance and then depart.  At hearing the Tribunal asked the applicant whether he had sought counselling as he had been recommended to do in June 2020, and the applicant stated that obtaining such professional services was expensive.  Furthermore, he stated he was hampered in seeking assistance due to having COVID-19.  Asked if he had taken antidepressants as also recommended by the medical practitioner, the applicant stated he had in the past but then stopped taking them.  It is not clear to the Tribunal whether the applicant simply stopped the medication or whether it was under supervision of a medical practitioner. 

22. At hearing the applicant stated that his parents had been prepared to support him financially during his time in Australia, and that they continued to support him.  It is difficult to see, therefore, why the applicant after being given recommendations in June 2020 by his medical practitioner, did not avail himself immediately of the counselling and psychotherapy treatment necessary, in combination with anti-depressants, to pursue his own well-being. 

23. Given the applicant’s parents appear to have been prepared to support the applicant in Australia indefinitely, the Tribunal sees no reason, if there had been a serious medical issue to deal with, they would not have immediately after June 2020, provided the financial assistance to help the applicant with his medical issues.  Given the lack of motivation to date to seek prolonged and effective treatment, the Tribunal has doubts that the applicant will from now on use the Medical Treatment visa to deal with his medical problems in Australia. Rather the Medical Treatment appears to be a means to an end - study. 

24. The Tribunal considers that, on the basis of the applicant’s evidence that his parents have a business and have been supporting him continually in Australia, they would also have the resources to assist the applicant with finding appropriate medical assistance in Vietnam.  The Tribunal therefore finds it difficult to accept that the applicant did not seek counselling because he could not afford treatment.

25. The Tribunal accepts, again on the basis of little evidence, that the applicant might have suffered COVID-19 for a month in August 2021, but this does little to explain why previous to that time he had not engaged in counselling.  During the pandemic psychologists and psychiatrists were making their services available through electronic communication means such as Skype and the Tribunal does not accept that the applicant would have been hampered in obtaining assistance well before the writing of this decision, and after the lodgement of the Medical Treatment visa.

26. The limited evidence that the applicant made an effort to deal with his mental health issues after lodgement of the visa, leads the Tribunal to query whether the underlining reason for this is because his purpose in obtaining the Medical Treatment is to continue to remain in Australia to pursue his studies, or for some other reason.

27. The fact the applicant has not returned to his home country since departing in November 2015 also leads the Tribunal to have reservations that the applicant’s purpose in seeking the visa is to prolong his stay in Australia.

    The personal circumstances of the applicant that would encourage him to return to his home country at the end of the proposed stay

28. From the applicant’s own evidence, it appears that his parents want him to remain in Australia, and possibly to study.  It appears that the applicant feels some sense of responsibility to carry out their wish and to fulfill their expectations.  While in the view of the Tribunal returning to his home country would mean he would have the support of his family (his parents and younger sister) and he could obtain medical treatment for his depression and anxiety there, the applicant is not persuaded.  He stated at hearing that the standard of care for those with mental health problems was not as high in Vietnam as it is in Australia and moreover, after becoming well again he would try to apply for a student visa onshore. 

29. While the Tribunal accepts that the applicant might have strong ties to his family in Vietnam, it does not appear that these ties outweigh the applicant’s strong desire to remain in Australia to gain the opportunity to study again.   As such, the Tribunal sees few personal circumstances that would encourage the applicant to return to his home country.

    The personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption)

30. The Tribunal accepts that as he stated at hearing, the economic circumstances in Vietnam are stable and while the standard of living might not be as high as that in Australia, the Tribunal observes that the visa applicant’s parents have been able to support the applicant without him working in breach of his student conditions and during his unlawful period.  Notwithstanding the stability of his home country, the applicant has not demonstrated any willingness to return to his home country and therefore, the applicant, the Tribunal considers, continues to be incentivised to remain in Australia regardless of the conditions in his home country.

    Conditions that might encourage the applicant to remain in Australia

31. The applicant has unfinished business in Australia in that he seems to hold a great deal of regret that he did not complete his studies here.  At hearing he stated that he wanted to complete a Diploma and that then he would return home.  The applicant’s desire to remain in Australia to continue his studies is such that the applicant is highly encouraged to remain in Australia and that he might consider leaving the country only after he has achieved his goal to finish a course of study.

    The presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia

32. The applicant stated he had a few friends in Australia but had few ties in terms of belonging to any associations.  In terms of his family bonds, it appears that the applicant’s nuclear family in Vietnam represents his closest affective ties.  Despite the applicant seeming to be somewhat isolated and struggling with the fact he did not complete his studies, his ties to his family in Vietnam have not been enough to motivate him to return home to them.  As such, the Tribunal has little confidence that they will do so in the future if the Medical Treatment visa is granted.

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

    Conclusion

34. 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

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

    Rosa Gagliardi
    Member