Guo (Migration)

[2022] AATA 4829

Guo (Migration) [2022] AATA 4829 (14 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaoxu Guo

REPRESENTATIVE:  Mr Bing Yao (MARN: 0960481)

CASE NUMBER:  2108467

HOME AFFAIRS REFERENCE(S):          BCC2021/1250775

MEMBER:Wendy Banfield

DATE:14 December 2022

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 14 December 2022 at 5:04pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary entrant – migration history – initial visa cancelled, period as unlawful non-citizen and long period holding bridging visa – application for partner visa refused and application for review withdrawn after making current visa application – mental health – no evidence of treatment provided – new relationship – not medically unfit to depart and no intention to depart after treatment demonstrated – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(6), 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 29 June 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 June 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 they were 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 cl 602.215.

   Background

4. The applicant is a citizen of China and is currently 31 years old. She arrived in Australia on 12 February 2011 as a student. While onshore the applicant got married and had a daughter. At the time of application, she was separated from her former partner.

5. On 16 June 2021 the Department of Home Affairs (the Department) wrote to the applicant inviting her to comment or respond to information regarding her intention to be a genuine temporary entrant, incentive to depart Australia and migration history. The applicant provided a response to the invitation to comment which was considered by the Department in its decision.

6. According to Departmental information:

   ·     The applicant most recently entered Australia on 12 February 2011 as the holder of a Student (Subclass 571) Visa. This visa was cancelled on 23 August 2011 and the client remained in Australia unlawfully until a Bridging (Subclass 050) Visa was granted on 07 March 2012.

   ·     Whilst onshore the applicant demonstrated an intention to remain in Australia permanently by applying for a Partner (Subclass 820/801) Visa on 16 November 2015. The application was refused on 08 February 2018. The applicant sought review at the AAT on 24 February 2021 and the application was withdrawn on 01 June 2021.

   ·     On 24 May 2021 the applicant applied for a Medical Treatment (Subclass 602) Visa. The application was refused on 10 June 2021.

   ·     The applicant has not held a substantive visa since 23 August 2011.

7. In applying for the Medical Treatment Visa, the applicant claimed she was suffering from mental health conditions. She declared in her application for a Medical Treatment visa: “I am suffering from a severe depression problem due to my partner was involving drugs and I am a victim of domestic violence. The estimated cost is around $2000.00.” The applicant indicated the approximate dates she would be under medical care was 29 June 2021 to 29 March 2022.

8. The applicant submitted the following evidence to the Department in support of her application:

   ·     Medical Treatment Visa application form dated 15 June 2021.

   ·     Form 1507 Evidence of intended medical treatment dated 23 April 2021.

   ·     Applicant’s passport and national identity card information.

   ·     Applicant’s bank statements.

   ·     Details of intended medical treatment – letter from Colin Kong, psychologist dated 15 May 2021.

   ·     Letter from Sunnybank Medical Clinic dated 13 June 2021.

   ·     Copies of prescriptions in the name of the applicant.

   ·     Photos of prescription and over the counter medications.

   ·     Statement in response to the Department’s invitation to comment.

9. The applicant provided the following submissions to the Tribunal:

   ·     Department’s notification and decision record dated 29 June 2021 was submitted to the Tribunal prior to the hearing.

   ·     Applicant’s written statement dated 16 October 2022.

   ·     Witness statement by Si Sun, a friend of the applicant dated 13 October 2022.

   ·     Updated letter from Colin Kong, psychologist dated 18 October 2022.

10. The applicant appeared before the Tribunal on 28 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

11. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

    The hearing

12. The applicant confirmed she first came to Australia in 2011 as a student. She initially studied language. The applicant advised that while in Australia she married her former partner and she has one child, a seven-year-old daughter who was born onshore. The Tribunal asked the applicant to explain why she had applied for a medical treatment visa. She said she had gone to see a doctor because she had serious problems and needed to stay in Australia to receive treatment. The applicant claimed she had not been able to sleep, she was very tired, and her mood was unstable. When asked when she first attended a doctor’s appointment she said she could not remember but believed it was last year or the year before. She was asked if she was diagnosed with a medical condition, and she said it was anxiety and depression. The applicant was referred to a psychologist by her doctor.

13. According to the applicant she attended appointments with a psychologist, and she was given strategies. She said she was also prescribed medication by her GP. The applicant said she attended on a weekly or fortnightly basis but is now attending every four weeks. The Tribunal put to the applicant that the letter from the psychologist in 2021 states she requires counselling for 10 to 12 months and the updated 2022 letter says the same thing. The applicant claimed her doctor would not allow her to return to China now because her condition would get worse. She also referred to the COVID-19 pandemic. The Tribunal asked why she does not return to China and access the treatment she requires there. In response the applicant said plane tickets are very expensive and the pandemic is still in China. She also said she has a boyfriend in Australia.

14. The Tribunal put to the applicant that it appears she has had some treatment including being prescribed medication, which she could continue in China. The applicant claimed she will go back to China, but her doctor does not recommend it now. The applicant then said she is worried she will be a burden to her parents in China and referred to having adapted to the Australian environment. The Tribunal suggested to the applicant that her circumstances, including having a boyfriend in Australia suggests she does not intend to depart. The applicant replied that her boyfriend, who is also in Australia on a visa, can support her while her parents cannot. She said she has not thought about her relationship if she must leave Australia as she has focussed on getting better.

15. The applicant was asked about having been in Australia unlawfully while onshore as a temporary resident. She said she returned to China to visit, and the school informed her she was no longer enrolled. It was then put to her that she had said in her written statement that she still wants to study and that this suggested she did not intend to depart after medical treatment. The applicant claimed that when she referred to “study” in her statement, she meant her doctor told her she should learn something to improve her health.

16. The Tribunal asked the applicant about the medication she was prescribed and whether it is working for her. She said she had switched medications as part of the process. She said she had not researched psychologists and doctors in China that she may be able to see. According to the applicant, she does not have a source of income and would be a burden to parents, as well as there being a risk due to COVID. The applicant advised she is in a difficult situation and would be worse if she went back to China.

    Written submissions

17. The applicant’s written statement to the Tribunal sets out the circumstances surrounding her mental health issues. She states that while her symptoms have improved, she needs to continue treatment. The written statement from the applicant’s witness Si Sun indicates she met the applicant in Sydney and has known her since 2013. The witness describes her impressions of the applicant since she began suffering from depression and hopes the applicant can continue treatment in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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 she is not, whether she genuinely intends to remain in Australia temporarily for the purpose of the visa.

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

20. 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.

21. The applicant is in Australia and is currently 31 years old. There is no information that would indicate the applicant has applied for any other visa to be able to reside in Australia that she meets all the criteria for or that she would be eligible to apply for any other visa to remain in Australia. While the applicant claimed her doctor advised her not to return to China at present, there is no satisfactory evidence to indicate that any condition the applicant is suffering from would make her medically unfit to depart Australia.

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

23. In the present case, the visa applicant seeks the visa for the purpose of obtaining medical treatment for her mental health. This is a purpose for which a Medical Treatment visa may be granted: cl 602.211.

    Assessment

24. The medical evidence provided in support of the application indicates the applicant was diagnosed with a mental health condition. At the time of application, the medical evidence stated the applicant required treatment (cognitive behaviour therapy and counselling) with her psychologist for 10 to 12 months as of 15 May 2021. The applicant claimed she had attended appointments with her doctor and her psychologist regularly but did not provide any evidence to support the claim. The medical evidence provided to the Tribunal was an updated version of the letter from the psychologist now dated 18 October 2022 that again states the applicant may need 10 to 12 months treatment. The letter from 2021 and 2022 states “This is to certify that Ms Guo has come for psychologist consultation on 13/05/2021.” The version submitted to the Tribunal dated 18 October 2022 does not provide any details about the applicant’s current health or refer to any consultations the applicant may have had after 13 May 2021, as would be expected if the applicant had been receiving treatment monthly as advised. For this reason, the Tribunal is not satisfied the applicant has followed the advice given to her in 2021 that she undergo monthly cognitive behavioural therapy and counselling for 10 to 12 months.

25. The applicant also claims she was advised by her doctor she should not return to China but there is no independent evidence to support the claim. The Tribunal considers that applicant has had ample opportunity over the last 18 months, since May 2021, to receive medical and psychological assistance for her mental health condition and is not persuaded that she needs to remain onshore to continue treatment.

26. At the Tribunal hearing the applicant confirmed she had applied for a partner visa in the past. She expressed a wish to stay in Australia because she did not wish to burden her parents and because she had a boyfriend in Australia who can support her. The applicant confirmed she had spent a period in Australia unlawfully when she was not the holder of a valid visa. The applicant stated in her oral evidence that she would return to China when she recovers from her health issues but gave no indication of when that might be. This is despite the Medical Treatment (Visitor) (Class UB) visa being temporary and it being a requirement for the applicant to demonstrate an intention to depart after undertaking medical treatment in Australia. The Tribunal considers the applicant would be able to continue treatment for her mental health in her home country, and that if she returned to China, she would be at no greater risk of illness due to COVID than the general population. The Tribunal finds the applicant has reasons for seeking to remain in Australia which weigh against her in assessing whether she genuinely intends to stay temporarily in Australia. The Tribunal considered the evidence provided by the applicant’s witness and accepts she wants to support her friend. However, the Tribunal is not persuaded the applicant needs to remain in Australia for medical care, or that she had a genuine intention to depart at the end of any proposed treatment.

27. Having considered the written and in-person evidence provided, the Tribunal is of the view that the applicant's immigration history in Australia, the extension of her plans to continue medical treatment, and her evidence to the Tribunal of her ongoing ties in Australia demonstrate that she does not intend to stay in Australia temporarily. For these reasons, the Tribunal finds that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

28. 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

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

    Wendy Banfield
    Member