Huynh (Migration)

[2023] AATA 2754

Huynh (Migration) [2023] AATA 2754 (15 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khoa Huynh

REPRESENTATIVE:  Mr Amarjit Singh Anand

CASE NUMBER:  2213994

HOME AFFAIRS REFERENCE(S):          BCC2022/3269130

MEMBER:Louise Nicholls

DATE:15 August 2023

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 15 August 2023 at 4:42pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – treatment for stress and anxiety – applied after series of student and bridging visas – last student visa application made late by agent – successful completion of study – compliance with conditions – limited financial means and probability of working – medical reports – no concluded arrangements for treatment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215, Schedule 8, condition 8101

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Vietnam and is 23 years old. He first arrived in Australia as the holder of a Schools Sector (TU-571) visa on 2 July 2015.

2. Since that date, he has held a series of student and bridging visas. His last bridging visa was granted on 18 August 2022.

3. The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 17 August 2022. He provided several documents with the application, including:

   ·A copy of the biodata page of his Vietnamese passport issued on 10 March 2015.

   ·Form 1507 (Evidence of intended medical treatment) completed by Dr Hieu Tam Doan, medical practitioner, on 18 May 2022. The medical condition requiring treatment is described as “Stress and anxiety.”

   ·A statement from the Commonwealth Bank of Australia showing a list of transactions from 2 July to 17 August 2022.

   ·Copies of multiple invoices from Right Path Psychology, Adelaide, SA.

4. On 31 August 2022, a delegate of the Minister for Home Affairs refused to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act) because the delegate found that the applicant did not meet the requirements of cl.602.215. The delegate was not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the stated purpose of obtaining medical treatment.

5. This is an application for review of that decision, and it was lodged on 20 September 2022. The applicant provided a copy of the delegate’s decision record with his application. The applicant was represented in relation to the review by his legal representative.

6. Prior to the hearing listed for 3 August 2023, the applicant provided several documents including:

   ·Reports (2) prepared by Humera Rafiq, Registered Psychologist, dated 19 September 2022 and 25 July 2023.

   ·Several invoices from Right Path Psychology from 8 February 2022 to 18 July 2023.

   ·Copies of receipts for medications dated 4 April 2022.  

7. The applicant was represented in relation to the review. The applicant’s representative made written submissions on 26 July 2023 addressing matters of fact and law.

8. The applicant appeared before the Tribunal by MS Teams video on 3 August 2023 to give evidence and present arguments. The applicant gave evidence about his background and the purpose of his application for the visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative attended the Tribunal hearing.

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. The issue in this case is whether the applicant has a genuine intention to stay temporarily in Australia for the stated purpose.

    Background

11. The applicant is 23 years of age and was born in Ho Chi Minh City, Vietnam. His parents and younger brother are living in Vietnam. He attended school in Vietnam and obtained a student visa to come to Australia and study in 2015.

12. On 26 June 2015, the applicant was granted a Schools Sector (TU-571) visa. The applicant arrived in Australia on 2 July 2015 and his first TU-571 visa ceased on 15 March 2018. He was granted a bridging visa until his next Student (TU-500) visa was granted on 3 May 2018. That visa ceased on 14 March 2019, and he was granted another bridging visa until he was granted a third TU-500 visa on 27 March 2019. This visa ceased on 15 March 2021.

13. While holding student and bridging visas, the applicant successfully undertook a number of courses, including an English language course and several courses in hospitality and cookery.

14. The applicant gave evidence that in his final Advanced Diploma course, he failed one subject and was advised to extend his student visa to enable him to complete that course. He instructed a migration agent to complete his application in 2021, but his agent delayed lodging the application and as a result his visa was refused.

15. After 30 April 2021 the applicant was granted a series of Bridging E (WE-050) visas and the latest grant is still in effect.

    Is the visa for medical or related purposes?

16. In the present case, the visa applicant seeks the visa for the purposes of treatment for chronic stress, anxiety and insomnia. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

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

17. 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.

18. The applicant has given oral evidence that he is 23 years old, and this evidence is supported by the birth details provided in the copy of his Vietnamese passport. The Tribunal finds that the applicant is 23 years old and has not yet turned 50.

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

20. The applicant stated his intention had always been to finish his hospitality courses and to return to Vietnam to open his own business. However, his health had been poor, and he had difficulty sleeping. He was prescribed medication, but this made him feel unwell. He wanted his health to improve before he finished his last course and left Australia.

21. In 2022 he started attending Right Path Psychology for therapy and this has assisted him with depression and anxiety. He has improved since starting his therapy sessions and is now attending once a month. He told the Tribunal he needed further time for his health to improve. He stated he could not access counselling and treatment in Vietnam.

    Has the applicant complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject?

22. The applicant gave evidence that he had not breached visa conditions on previously held substantive and bridging visas and the Tribunal accepts this evidence. There is no evidence which might suggest that he has breached the conditions of any previously held visas.

23. The applicant acknowledged that he had been without a visa for a few days when his former migration agent failed to lodge a student visa application on his behalf in 2021. The Tribunal accepts that this short period of unlawfulness was not intentional on his part and when he became aware of it he applied promptly for a bridging visa.

    Does the applicant intend to comply with the conditions to which the Subclass 602 visa would be subject?

24. Medical treatment visas are subject to condition 8101 (No work) and 8201 (No studies) and may be subject to 8503 (The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia).

25. The applicant stated in his statement to the Department that he failed one subject in his Advanced Diploma of Commercial Cookery and had to apply for a further student visa in March 2021 but his former agent had delayed the application and as a result his application was found to be invalid. At that time he was without a visa for a few days through no fault of his own but then obtained a bridging visa and eventually completed his Advanced Diploma. He stated that he had completed his studies and had no intention to study while on a medical treatment visa. The Tribunal accepts that the applicant does not intend to study if he was granted a medical treatment visa.

26. At the Tribunal hearing the applicant stated he was not currently working and that he relied on his savings and his mother’s contributions for his financial support in Australia. He explained that his mother gives lump sum cash payments to friends who are travelling between Vietnam and Australia and those friends pass on those cash sums to him. He told the Tribunal he was aware that he would be subject to a “No Work” condition if granted a medical treatment visa.

27. With respect to the “No Work” condition, the applicant’s representative submitted that the Department had invited the applicant to apply for a Subclass 190/Subclass 491 visa. He submitted this demonstrated that if the applicant wanted to work, he could have applied for that visa. However there is no other evidence before the Tribunal if, when, and on what terms the Department extended such an invitation and in the absence of such evidence, the Tribunal places little weight on this submission. Further an invitation to apply does not necessarily lead to the conclusion that he would have been eligible for such a visa as he would have had to meet a number of requirements for the visa.

28. There is little evidence as to how the applicant intends to support himself if he remained in Australia as the holder of a medical treatment visa without working. He claimed he has savings but the only financial information he provided was a Commonwealth Bank statement dated 7 August 2022 which showed balances ranging from -$228 to $5996 through the period between 2 July 2022 to 17 August 2022. The deposits made during that time were from his net wages and other various cash deposits.

29. He claimed that his mother provided some financial support by friends bringing cash to him in Australia after they visited Vietnam. However, he did not give details of the amounts, frequency or how these cash payments were applied.

30. The Tribunal does not consider that the applicant will be able to support himself without working if he was granted a medical treatment visa. The Tribunal notes that the applicant was working up until at least 12 August 2022 when he received a payment for “net pay” from Red Chilli. It does not accept that he has provided sufficient evidence to satisfy the Tribunal that he will not work if he were granted a medical treatment visa.

    Other relevant matters

31. The applicant provided a Notice of Intended Medical Treatment in May 2022 from a general practitioner who recommended counselling with GP review for stress and anxiety. The applicant provided evidence that he has been regularly attending and paying for therapy sessions with Right Path Psychology from at least 22 February 2022 until 18 July 2023.

32. The applicant’s psychologist has written two reports, the last of which was prepared in July 2023. In the first report dated 19 September 2022 the psychologist has stated that the applicant suffers from an adjustment disorder with anxiety related to his studies. He had been taking sleep medications prescribed by his general practitioner but no longer takes that medication. She reported he was stressed due to his immigration status and he needs assistance from the immigration department. She stated this assistance would significantly aid his psychological treatment. However, she does not outline what psychological treatment he is receiving on an ongoing basis. However, the Tribunal accepts he has been attending regular counselling.

33. In the second report of July 2023, she referred to the applicant’s stress and tension arising from concerns about his immigration status. She stated he has completed all requirements up to his diploma level and is facing specific immigration and work rights challenges. She stated that the uncertainty with his immigration status has severely affected his mental health. His symptoms have included tension headaches, poor concentration, insomnia and fluctuating mood.

34. She states

    “Furthermore, Mr Huynh has disclosed that his concentration has been severely impaired due to his ongoing concerns about his immigration situation. The constant worry about his residency and work rights has made it challenging for him to focus on his studies or employment responsibilities. As a result, his academic and professional performance has suffered, exacerbating his stress and emotional strain.”

35. She refers to his insomnia and fluctuating moods. She states that his psychological condition impairs his ability to meet his immigration requirements in a typical manner and his symptoms are consistent with individuals experiencing chronic stress and anxiety.

36. She states

    “It is vital to consider the adverse impact of the immigration-related challenges on Mr Huynh's psychological wellbeing.

    I am concerned that without appropriate intervention and resolution of his immigration status, his mental health may continue to deteriorate, potentially leading to more severe psychological consequences.”

37. The reports provided by the applicant do not indicate that there are concluded arrangements for medical or psychological treatment. There is nothing in his psychologist’s reports which might indicate that the applicant has a genuine intention to stay temporarily in Australia for a course of medical or psychological treatment. The psychologist appears to be advocating for a favourable migration outcome as a means to resolve his symptoms rather than specific medical or psychological treatments or interventions. Further while she describes some symptoms and refers to “an underlying mental health issue”, she does not make specific recommendations for medical or psychological treatment.

38. Further the Tribunal considers her reference to his concerns about residence and work rights is not consistent with his oral evidence to the Tribunal that he wishes to return to Vietnam to start his own business and that he does not have an intention to remain in Australia indefinitely.

39. The Tribunal invited the applicant to provide any other evidence which might support his claim that he had a genuine intention to stay temporarily in Australia for medical treatment. He stated he was unable to do so as he was uncertain as to when his health would improve to the level he needed to return to Vietnam. He stated that his parents have spent a lot of money on his education, and he does not wish to return to Vietnam and disappoint them.

40. The applicant stated that counselling and psychological therapy is not available in Vietnam to the extent it is available in Australia and the Tribunal accepts this evidence. However, despite the applicant seeking to extend the period of time in Australia to attend counselling, this does not support his claim that he intends to stay temporarily for medical treatment.

    Conclusion

41. The Tribunal does not accept that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment. It considers that he has not provided reliable and probative evidence of an intention to remain temporarily in Australia for the stated purpose.

42. The Tribunal has considered the applicant’s oral evidence, the documents he has provided to support the application and his representative’s submissions.

43. The Tribunal accepts that the applicant has experienced stress and tension in relation to his studies and his migration status. It also accepts that he has received counselling from a registered psychologist to help him deal with that stress and tension. However, he has not provided any evidence of treatment plans suggested by his medical advisors or his psychologist.

44. His psychologist has referred to his anxieties about residence and work rights whereas the applicant has given oral evidence that he does not intend to work and wishes to return to Vietnam to set up his own business. The Tribunal considers that the information he gave his psychologist more accurately reflects his concerns about ongoing work rights and the resolution of his immigration status. It does not support his evidence that he wishes to return to Vietnam when his mental health improves. Rather it indicates that he intends to remain in Australia for an indefinite period of time.

45. The Tribunal does not accept that he intends to complete some further counselling and then return to Vietnam when his health improves. He could not provide any other evidence which might support the claim that he plans to return to Vietnam to set up a business.

46. The Tribunal has also considered whether the applicant intends to comply with conditions which would attach to a medical treatment visa. The Tribunal accepts that he has completed his studies and will abide by a condition that he will not undertake any further study. However, it is not satisfied he will comply with condition 8101 and that he will not work if he were the holder of a medical treatment visa. The evidence indicates that he has been working in the past and he has raised concerns regarding his work rights with his psychologist which she referred to in her report of July 2023. This indicates that he will find it necessary to work to support himself and further it is difficult to see how he could support himself without working even if he has some support from his parents. He has not provided sufficient evidence to satisfy the Tribunal that he would not work if he were granted the visa.

47. The Tribunal has some sympathy for the applicant as he has successfully completed his hospitality studies in Australia and appears to have been disadvantaged by the apparent failure of his former migration agent to lodge an application for a further student visa within the necessary time limits. However, there is no other evidence provided to support this claim and, in any event, it is not relevant to the consideration of whether the applicant intends to stay temporarily in Australia for medical or psychological treatment.

48. Overall and taking all of the findings into account the Tribunal finds that cl 602.215 is not met.

49. 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

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

    Louise Nicholls
    Senior Member