KUMAR (Migration)

[2021] AATA 889

KUMAR (Migration) [2021] AATA 889 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sumit KUMAR & Ms Shivani KUMAR

CASE NUMBER:  1830624 and 1830625

DIBP REFERENCE(S):  BCC2018/3461106

MEMBER:Linda Holub

DATE:10 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Medical Treatment (Visitor) (Class UB) visas.

Statement made on 10 March 2021 at 9:23 am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – medically unfit to depart Australia – not turned 50 years of age – genuine temporary entrant – mental health condition – purchased a business in Australia – presence of siblings in Australia – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 decisions made by a delegate of the Minister for Immigration on 28 September 2018 to refuse to grant the applicants a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 10 September 2018. 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 first named applicant the visa because the delegate found that the first named visa applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and he does not genuinely intend to remain in Australia on a temporary basis. The second named visa applicant was refused on the basis that the person she was seeking to support does not hold a Medical Treatment visa.

4. A combined hearing was undertaken for their cases. The review applicants appeared before the Tribunal on 10 November 2020 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicants in regard to the hearing being conducted in this way nor was there any indication that the had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicants were represented in relation to the review by their registered migration agent who participated in the telephone hearing.

1. For the following reasons, the Tribunal has decided that the decisions under review should be affirmed.

BACKGROUND

1. The applicants are nationals of India.

2. The first named applicant applicant was born in July 1981. The Department’s Decision Record outlines the applicant’s migration history as follows: he first came to Australia in 2001 as a dependent on a diplomatic visa. He has held diplomatic visas, student visas and bridging visas in the past. He returned to Australia on 6 September 2014 as the holder of a Student (subclass 573) visa as a dependent applicant. The visa was due to cease on 21 December 2016. On 6 December 2016, the applicant was included as a dependent applicant on his wife’s Skilled (Provisional) (subclass 485) visa. The application was refused on 2 February 2017. He sought merits review and subsequently judicial review, which resulted in a Minister Win being recorded on 21 February 2018.

3. On 22 March 2018, the applicant applied under Section 351 for Ministerial Intervention in relation to his Bridging (subclass 010) visa. The application was deemed to not meet the guidelines to be referred to the Minister on 22 April 2018. On 10 September 2018, the applicant lodged a Medical Treatment (subclass 602) visa application and he and his wife were subsequently granted a Bridging E (subclass 050) visa.

10.  The second named applicant was born in 1989. She first arrived again in Australia on 6 September 2014 as the holder of a Student (subclass 573) visa. The visa was due to cease on 21 December 2016. On 6 December 2016, the second named applicant applied for a Skilled (Provisional) (subclass 485) visa. The application was refused on 2 February 2017. The applicant sought merits review and subsequently judicial review, which resulted in a Minister Win being recorded on 21 February 2018.

11.  On 22 March 2018, the applicant applied under Section 351 for a Ministerial Intervention in relation to her Bridging (subclass 010) visa. The application was deemed to not meet the guidelines to be referred to the Minister on 20 April 2018. On 10 September 2018, the applicant lodged a Medical Treatment (subclass 602) visa application and she was subsequently granted a Bridging E (subclass 050) visa.

12.  The applicants are current holders of a Bridging (subclass 050) visas. During their time in Australia, they have been unlawful non-citizens for 47 days. They also have reviews of their Bridging A visas refusals before the current Tribunal.

CONSIDERATION OF CLAIMS AND EVIDENCE

13.  The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes or to support a person granted a Medical Treatment visa.

EVIDENCE PROVIDED AT HEARING

14.  The Tribunal sought to confirm that a submission provided by the applicants’ migration representative on 3 November 2020 was in relation to a separate Bridging visa review and was told they are interrelated.

Is the applicant unfit to depart Australia?

15.  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.

16.  The records of the Department indicate that the applicants were in Australia at the time of application on 10 September 2018. Accordingly, the Tribunal finds that they satisfy the requirements of cl.602.212(6)(a). The evidence before the Tribunal indicates that they were born in July 1981 and December 1989 respectively and therefore they have not turned 50 years of age. Accordingly, as they have not turned 50 years of age the Tribunal finds that therefore do not satisfy the requirements of cl.602.212(6)(b). As the do not satisfy the requirements of cl.602.212(6)(b), they are unable to meet the requirements of cl.602.212(6) in its entirety.

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

18.  Given the above findings, the requirements in cl.602.212(6) are not met.

19.  The applicants are not medically unfit to depart Australia and therefore the requirement at Clause 602.215 applies.

Written evidence provided to the Department

20.  In his Form 1507 the applicant’s medical practitioner wrote that the applicant was suffering from severe depression and anxiety and that he was suicidal. In relation to the treatment required the medical practitioner referred to an anti-depressant, counselling and stated that the applicant had been referred for psychological counselling. In support of his application the applicant provided a referral from a GP to psychologist dated 4 September 2018 which states that the applicant is depressed and suicidal. The letter from the psychologist dated 6 September 2018 states that following the applicant’s assessment he would be providing mental health treatment and that this treatment would likely last for a minimum of six months and that it would consist of psychoeducation, cognitive behaviour therapy and relaxation strategies.

21.  The applicant also provided the Department with a bank statement for his Business Everyday Statement account for the period August 2018 and a copy of his sister-in-law’s Australian Citizenship certificate. A letter from the applicant’s migration representative discusses issues in relation to the applicant’s request for Ministerial Intervention.

Written evidence provided to the Tribunal

1. On 29 October 2020, the Tribunal was provided with:

• a report from a Consultant Psychiatrist Dr Shweta Sharma letter dated 26 October 2020 sent to the applicant’s GP. It states that the applicant’s history of depression and anxiety started with issues in regard to his immigration status. It refers to the applicant seeing a psychologist sometime in 2018-2019 and that he also tried an antidepressant medication in the past with little benefit. The letter refers to the applicant describing that he has experienced low mood, anxiety, lethargy, poor appetite, weight loss and prominent sleep issues. The letter states that the applicant has reported feeling hopeless with fleeting passive suicidal thoughts but denied any active thoughts or plans. The psychiatrist’s opinion is that the applicant has been suffering from major depression of mild-moderate severity accompanied by anxiety symptoms. It states that the applicant has agreed to have a trial of an antidepressant. The applicant will require monthly follow-up reviews or possibly more frequent.

• a letter from a psychologist dated 21 October 2020 was also provided. It states the applicant is still suffering from an adjustment disorder with mixed anxiety and depressed mood. It refers to the applicant struggling to cope with the uncertainty of his immigration status It states that the applicant is welcome to continue to access mental health services from the psychologist and refers to the first named applicant accessing services from the previously referred to psychiatrist.

• a copy of an update from the Australian High Commission dated 28 October 2020 regarding flights from India to Australia.

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

23.  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).

Does the second named applicant meet the requirements as a support person?

24.  Clause 602.212(4) relates to the applicant seeking to give emotional and other support to an applicant in relation to whom the requirements in subclause (2) or (3) are met. Subparagraph (2) relevantly, relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Subclause (4) also requires the person to whom the applicant is to provide support to hold a Subclass 602 visa and the applicant must satisfy PIC 4005.  In the case of this decision, clause 602.212(4) applies to the second named applicant.

Oral evidence provided at hearing

First named applicant

25.  The applicant stated that after his diagnosis, he was prescribed an anti-depressant which he took for approximately three months. He stated that initially it looked okay but after that side effects started to kick in. He referred to having pain in his stomach and his anxiety levels were high, so he stopped taking the medication. The applicant stated that even though he had a referral to a psychiatrist he became sceptical of anti-depressants. He stated he tried a number of traditional Indian approaches including yoga and meditation that he thought it would be better for him. The applicant stated that he started looking for a psychiatrist again in July 2020, but the first available appointment he was able to obtain was for about three or four months hence as some psychiatrists had stopped taking on new patients.

26.  The Tribunal asked the applicant if he could provide it with a copy of his referral to a psychiatrist he obtained in July. He responded that he first needed to get an appointment and then to obtain a referral. He referred to the difficulty of obtaining an appointment because of the Covid-19 pandemic He explained attempts to obtain an appointment with a psychiatrist in Norwest and one in Kellyville using a referral from 2018.

27.  When asked whether he undertook any of the other treatment options recommended by his psychologist in September 2018, such as psychoeducation and cognitive behaviour therapy, the applicant responded that he thinks his condition was too serious. He stated that his psychologist was ‘not a very good listener’. When asked why he had not sought a referral to a different psychologist, he talked about the difference between psychologists and psychiatrists and that he was not aware that psychologists were unable to prescribe medication because it was the first time he had dealt with such issues.

28.  The applicant stated that he is now on new medication which makes him drowsy. He stated he is also doing some breathing exercises. He stated that sometimes his condition gets worse and sometimes it gets a bit better. At the moment he thinks he is okay and that he is able to sleep. When asked if he is doing anything else to help manage his condition, he responded that he is goes for walks when he does not feel too drowsy.

29.  When asked why he would be unable to continue taking his medication, doing his breathing exercises and going on his walks in India, the applicant referred to Delhi’s hazardous air quality. He stated that he also suffers from asthma. He stated that he needs a conducive environment to aid his recovery. The Tribunal noted it would be a matter for him to decide where he lived in India. He responded he has family in Delhi.

30.  The applicant stated that although there are likely many people with mental health problems in India, they either do not seek treatment or are considered lunatics. He stated that it is very evident that he is on something. He stated that in India people with mental illness are not treated well.

31.  The applicant stated that India is going through a Covid-19 crisis. He stated that although he does not mind going back to India, he may get infected and might pass it on to his parents, who are over 66-years of age. He referred to a recent flight from India which flew into Darwin with four Covid positive passengers on the flight.

32.  The applicant stated that he did not return to India previously because he had paid for the review and that it took some two years for the matter to progress. He stated that his parents do not know about his condition. If they see him in the state he is in, it will affect their mental health.

Second named applicant

33.  The second named applicant dropped out of the call for about two to three minutes. She indicated that she had heard all of it except for the preceding paragraph which the Tribunal conveyed to her.

34.  The second named applicant stated that she would have trouble obtaining work if they were to return to India. She stated that she is the only one working at the moment because of her husband’s mental health. She referred to her husband having most of his brothers and sisters in Australia and they are able to provide support. She stated that his parents are retired. She stated that her mother and brother live in Delhi.

Oral submission made by the migration representative

35.  The Tribunal sought to confirm that a submission by the applicants’ migration representative on 3 November 2020 was in relation to a separate Bridging visa review application. He responded that the two applications are related.

36.  The applicant’s migration representative stated that he is of the opinion that the applicant does have mental health issues. He referred to the prejudice shown to people with mental health issues in India.

37.  The representative referred to the harshness of the law in relation to the second named applicant Skilled (Provisional) (subclass 485) visa application and the timing of when she took the required English test. He stated that the second named applicant has solid qualifications and that the first named visa applicant has shown himself to be an entrepreneur. He stated that visa applicant had bought a business, borrowing money from family members. He stated that due to fiasco with the couple’s application for Ministerial Intervention it put pressure on the applicant, and he was forced to sell his business at an unfair price. He explained that the applicants lodged the initial Ministerial Intervention application themselves. He said they were initially pursuing it under the wrong provision and when the Department called to change it to the correct provision, it did not advise them about implications for their Bridging visas. He stated the decision to refuse was made the same day. He considered the decision very harsh.

38.  The representative stated the Tribunal has discretion to show the couple some compassion. He stated that aside from the Covid-19 pandemic they have no issues going back to India as they have sold their business. He asked that the Tribunal support a request for Ministerial Intervention. He explained that because they had already applied once they cannot apply again. Alternatively, he stated the Tribunal could remit the Medical Treatment application. He stated that it might help the applicant with his mental health condition. He again referred to the harshness of the law and that Mrs Kumar did pass the English test in 2017. He also referred to the requirements of cl. 602.215 and stated they have complied with their visa conditions.

39.  The migration representative stated that the applicant’s father was a diplomat in Australia and contributed to relations between India and Australia. The Tribunal explained that this was not a matter it could take into account in its consideration. He made further reference to the fact that the applicant had ticked the wrong box in the Skilled (Provisional) (subclass 485) visa application and that it’s a matter of fairness and natural justice. He stated that he had explained to the couple that they are not eligible for permanent residency and they are happy to return to India if required.

40.  The representative stated that on the basis of compassion, the couple seek the Tribunal’s support for a Ministerial Intervention application. He stated they did not seek legal advice until after 22 March 2018 when the dam was broken, and water was already overflowing. He stated the applicant lost his mind because of those problems.

41.  The Tribunal explained that it will consider the request for support the of a Ministerial Intervention application in the context of the Ministerial Guidelines and also explained that its decision on the Medical Treatment visa must take into consideration an assessment as whether on whether the Tribunal is satisfied that the applicants will remain in Australia temporarily.

Post hearing submission

42.  The Tribunal was provided with a report from the first named applicant’s Consultant Psychiatrist dated 19 February 2021. In it he confirms that the first named applicant suffers from major depression with anxiety symptoms. He stated that despite psychiatric treatment and medication, response of the first named applicant remains partial and he continues to display some depressive symptoms. The report states that he is concerned that the stress of moving to and settling in India, given the first named applicant’s ongoing mental state will likely result in worsening his symptoms and further his risk of suicide.

Findings

43.  The Tribunal accepts that the first named visa applicant has been diagnosed with depression and anxiety. The Tribunal accepts that he is currently undergoing treatment and that his psychiatrist has concerns about him.

44.  The Tribunal accepts that the first and second named applicants would prefer to remain in Australia for a number to reasons including because the Covid-19 pandemic is more prevalent in India than in Australia, because of the air quality in Delhi and because of claims regarding the treatment of people with mental illness in India. No evidence was presented that the applicant would be unable to obtain the necessary treatment in India. In addition, the Tribunal notes that the first named applicant’s parents live in India as do the second named applicant’s mother and brother. While the Tribunal was told that the parents of the first named applicant would be distressed to see him in his current state, no evidence was presented that his parents would not support him.

45.  The Tribunal must consider whether the first named applicant intends a genuine temporary stay in Australia. The Tribunal notes that the applicants have been in Australia since 2014. The Tribunal notes that the visa applicant purchased a business in Australia without a clear long-term migration pathway. This suggests that he had an interest in remaining in Australia although the Tribunal was told he has now sold the business. The Tribunal also has had regard to the fact that the visa applicant’s siblings reside in Australia which provide a further incentive for the couple to remain here. Furthermore, no evidence was presented regarding what improvement that might be expected in the applicant’s condition in the foreseeable future.

46.  Overall, the Tribunal is not satisfied the first named applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl.602.215(1)(a) to (c).  Given the above findings, cl.602.215 is not met.

47.  On the basis of the oral evidence before it, the Tribunal accepts that the second named applicant financially supports the first named applicant. No evidence was provided as to any further assistance she provides him. As the first named applicant does not hold a Medical Treatment visa and elsewhere in this decision, the Tribunal has affirmed the Department’s decision to refuse him such a visa, the Tribunal is not satisfied the second named applicant meets the requirements of the visa.

48.  Given the above findings, cl.602.212(4) is not met in respect of the second named applicant.

Request to support an application for Ministerial Intervention

49.  The Tribunal is sympathetic to the circumstances of the couple resulting from the situation that arose by the way in which the first named applicant answered certain questions in a Skilled (Provisional) (subclass 485) visa application lodged in respect of  the second named applicant. Nevertheless, the Tribunal approaches the consideration of requests for it to support an application for Ministerial Intervention in the context of the ministerial guidelines on the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). It is the view of the Tribunal that the circumstances submitted by the applicants do not meet the unique or exceptional circumstances outlined in the Guidelines and therefore the Tribunal does not support an application for Ministerial Intervention.

50.  Based on the findings above, the applicants do not meet the requirements for the grant of the visa. The decision under review must be affirmed.

DECISION

51.  The Tribunal affirms the decision not to grant the applicants Medical Treatment (Visitor) (Class UB) visas.

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).