Harpreet Singh (Migration)

[2022] AATA 5250

Harpreet Singh (Migration) [2022] AATA 5250 (23 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh Harpreet Singh

CASE NUMBER:  2103638

HOME AFFAIRS REFERENCE(S):          BCC2021/254804

MEMBER:Nora Lamont

DATE:23 May 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 23 May 2022 at 10:26am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant does not genuinely intend to remain in Australia on a temporary basis – applicant is not medically unfit to depart Australia – applicant has not provided with any documentation that they have been participating in any therapy – mental health issue – 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 3 March 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 18 February 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). The delegate refused to grant the applicant the visa as clause 602.215 was not met by the applicant, and the delegate found the criteria for the grant of a Medical Treatment visa were not met by the applicant.

3. The applicant appeared before the Tribunal on 20 May 2022 to give evidence and present arguments. The Tribunal was due to receive oral evidence from the applicant’s brother but was unable to do so because the applicant’s brother could not be contacted.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 genuinely intends to depart Australia and if he has complied substantially with the conditions on his previous visas.

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

6. 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.

   The applicant does not satisfy subclause 602.215(6) as they have not demonstrated that they are unfit to depart Australia. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

7. The applicant claims he is depressed and needs counselling. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

   Tribunal Hearing

8. The applicant’s Form 1507 which was attached to his application for a Subclass 602 Medical visa stated he had depression and he was referred to counselling and psychiatry.

9. The applicant went over why his partner visa was refused and his wife left him which led him into a depression. He was split form his wife for 1.5 years, but they are back together and have been back together for several years. They have a child together and live in Tarneit in Victoria. His wife is an Australian citizen. He has a brother who is an Australian permanent resident.

10. He said he went to psychological therapy, but he didn’t like the therapist. He takes some depression multi vitamins. I asked him if he still had depression and he said he did because he has a child now and he can’t work so he has a lot of pressure. He said he sometimes just drives around, and it worries his family.

11. He has private insurance which costs him $200 per month and it doesn’t cover everything, and he must pay out of his own pocket. We discussed that the applicant must depart Australia and he said he went to get a USA visa, but they wouldn’t give him a visa as he is on a bridging visa. The applicant has some family in the USA, and he would like to get some treatment there. He also has family in Canada. He said his wife would not go back to India.

12. The applicant has a skin issue since getting his Covid 19 vaccinations. The Tribunal did postpone one hearing based on his skin issue as he sent in pictures of his skin condition. He said his skin condition got worse after his second vaccination. He takes anti histamines for this condition.

13. His brother was to give evidence at the hearing, but the hearing attendant was unable to reach him on the telephone. The applicant said that he works night shift and that is why he didn’t answer.

    Findings

14. The applicant has been in Australia since 2008 and unsuccessfully applied for permanent visas. I consider that the applicant did not provide the Tribunal with any documentation that he has been attending therapy or seeing a psychologist to assist with his depression. He did include photos of his skin issue but no medical documentation that this was an ongoing issue in which he needed medical treatment for.

15. The Tribunal does have regard to current country information that shows that mental health facilities and access to mental health care in India is limited and the applicant may be subject to stigma and discrimination. [1]

    Mental Health

    2.39 Access to mental health care is difficult and patients are subject to stigma and discrimination. In July 2017, the Mental Healthcare Act (MHC Act) came into force, repealing the earlier Mental Healthcare Act (1987), which had been widely criticised for not recognising patients’ rights. Interest groups consider the MHC Act an improvement as it contains a ‘right to mental health care’ and repeals section 309 of the Penal Code (1860), which had criminalised attempted suicide by a mentally ill person. Other policy and programmatic interventions in this area include the National Mental Health Programme, 1982; and the District Mental Health Programme, 1996. In 2014, the government released the first National Mental Health policy of India, ‘New Pathways New Hope’, and in 2016 undertook the first National Mental Health Survey of India.

    2.40 Access to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.

    2.41 According to India’s National Health Profile 2018, there are 43 government mental health hospitals in India. West Bengal has five facilities; Gujarat and Maharashtra have four; Kerala and Uttar Pradesh have three; Jharkhand, J&K, Karnataka, Madhya Pradesh and Rajasthan have two; and the remaining states have one facility each. India has fewer than 4,000 mental health trained professionals – fewer than one per 100,000 population. Most services are located in major cities, which often leads to local healers and non-qualified providers being the first point of care, even for serious mental health conditions.

    2.42 In practice, mental health programs continue to suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda. A 2017 WHO report that examined improving access to, and the appropriate use of, medicines for mental disorders found significant barriers to accessing medicines at all levels of the health care system. Many barriers are linked to stigma associated with mental disorders, duration and costs of treatment, and, in many areas, the geographical distance from health care providers.

    [1] DFAT Country Information Report India 10 December 2020

16. However, the applicant has not provided the Tribunal with any documentation that they have been participating in any therapy, are on medication or have otherwise planned or progressed any treatment and there is no information before the Tribunal that he plans to seek treatment in India.

17. The applicant did have a previous medical treatment visa refused and the applicant has remained in Australia. I have considered that the applicant does not intend to stay in Australia temporarily.

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

19. 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

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

    Nora Lamont
    Member