Le (Migration)

[2023] AATA 441

Le (Migration) [2023] AATA 441 (27 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minh Ky Le

REPRESENTATIVE:  Mr Viet Anh Le

CASE NUMBER:  2105528

HOME AFFAIRS REFERENCE(S):          BCC2021/516705

MEMBER:Rachel Da Costa

DATE:27 February 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 27 February 2023 at 9:55am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – adequate means of support – genuine temporary stay for medical treatment – previous application for permanent residence – full-time employment – counselling sessions ceased – no work condition – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.216, 602.611; Schedule 8, Condition 8101

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 12 April 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 9 April 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 the delegate was not satisfied that the applicant had, or had access to, adequate means to support himself during his stay in Australia. The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.

4. The applicant appeared before the Tribunal on 2 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages, although the applicant mostly addressed the Tribunal in English.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 meets criteria for the grant of the visa.

   Background

8. Based on information on the Department of Home Affairs and Tribunal files and the applicant’s oral evidence in the Tribunal hearing, his background is as follows. The applicant is a 37-year-old man from Vietnam. He has no family in Australia. In Vietnam, he has his parents and brother. They live in Ho Chi Minh City. He lived with his parents before he came to Australia. He speaks to his mother around twice a week, his father sometimes and not to his brother.

9. The applicant is gay and has known this since he was around 15 years old. From around 2015 to 2018, he was in a de-facto relationship in Australia with an Australian man. His father and brother do not know the applicant is gay. He has told his mother but she is not accepting of it. He has a good relationship with his family if he doesn’t talk about being gay.

10. The applicant first arrived in Australia in 2011 as a student. He has held two Student visas since being in Australia. His last substantive visa, which was a Student visa, ceased in August 2016 and he has not held a further substantive visa since that time. His company tried to sponsor him but the application was not successful. The applicant’s parents supported him financially when he was studying in Australia but since he started working, he supports himself. The applicant applied for a Partner visa but it was rejected when his partner withdrew the application.

11. He last travelled back to Vietnam in 2016 when he went there to lodge his Partner visa application. Since being in Australia he has mainly focussed on his work and building his career here, and at the time, his relationship. He currently holds a Bridging Visa C which entitles him to work.

    Does the applicant have access to, or adequate means of support?

12. Clause 602.216 requires the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia. 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.

13. In the Tribunal hearing, the applicant confirmed his presence in Australia and movement records of the Department of Home Affairs confirm this. The applicant gave evidence that he was born in 1985 and the bio-data page of his Vietnamese passport which he provided to the Department confirms this. There is no evidence before the Tribunal to indicate 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, or 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. The Tribunal finds that the applicant does not meet these requirements. The Tribunal also finds that the applicant is in Australia and he has not turned 50. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.216 does apply.

14. On 17 November 2022, prior to the Tribunal hearing, the Tribunal wrote to the applicant inviting him to provide information in relation to his application for review. The relevant part of the letter read as follows:

    …

    You applied for the Medical Treatment (Visitor) (class UB) Medical Treatment
    (subclass 602) visa on 9 April 2021.

    With your application you provided the Department with a bank statement showing a
    total balance of $581.82 AUD. The Delegate considered that this was not sufficient to
    support oneself while in Australia, as well as self-funded medical treatment for over
    one year.

    Although the bank statement was considered by the Delegate, the visa under
    application is a Medical Treatment (subclass 602) visa, and this visa has the condition
    (8101) (No Work) attached. Therefore, working to supplement the available funds
    would not be an option.

    Your application was subsequently refused because you did not meet cl.602.216.
    Clause 602.216 provides that:

    (1) The applicant has:

    a. Adequate means to support himself or herself; or
    b. Access to adequate means to support himself or herself;

    During the period of the applicant’s intended stay in Australia

    (2) However, subclause (1) does not apply if the requirements described in
    subclause 602.212(6) are met in relation to the applicant.

    You are invited to provide the following information in writing, and any evidence in
    support of:

    ·How you intend to support yourself financially while in Australia?

    ·How you intend to fund the medical treatment you are receiving while in Australia?

15. In his written response dated 1 December 2022, the applicant provided the following documents:

    ·     Medical certificate from Dr Bhagadatta Chakma, Swanston Street Medical Centre, Melbourne, dated 1 December 2022, which states that the applicant ‘has been suffering from major depression since 2019. He has been on antidepressant medication. He also requires ongoing counselling and support.’;

    ·     Statutory declaration from the applicant dated 1 December 2022. This statutory declaration states that the applicant has been suffering from major depression as a result of an abusive relationship and current rejection from his family for not being heterosexual. His General Practitioner requires his medical treatment to take place in Australia since there are risks of doing the treatment in Vietnam. These risks include rejection from his family, or discrimination from society and this may adversely affect the results of his treatment;

    ·     Copy of the applicant’s passport;

    ·     Visa Entitlement Verification Online (VEVO) check result dated 1 December 2022, which indicates the applicant holds a Bridging Visa which was granted on 19 June 2017;

    ·     Payslips for the applicant from Hampers With Bite Pty Ltd from August, September, October and November 2022.

16. In the applicant’s written submissions, it is submitted that according to the VEVO check, it indicates that he is holding a Bridging Visa C and there is no ‘no work’ condition imposed on him.

17. It is submitted that the applicant has stable, full-time employment with Hampers With Bite Pty Ltd and earns an annual salary of $75,000. His income is spent on daily expenses including his medical treatment and medication. He has high-level qualifications and his employer is supportive of him. His employment is his most reliable source of money to pay for his medical expenses. The applicant’s family have a strong financial background and supported him while he was studying in Australia. His family would have supported his medical costs but he insists on working to support himself.

18. It is submitted that the medical certificate confirms his serious medical issue and he still requires ongoing counselling and support from the Australian medical system. The applicant requires medical treatment to get rid of his current depression which arose out of a toxic relationship with his ex-spouse who he met in Australia. The applicant is stressed at not being accepted by his family as he is gay. He might face lots of risks including rejection from his family and discrimination from society which may adversely affect the result of his treatment.

19. It is submitted that the applicant has provided adequate information to support his intention of funding for his medical treatment and he can legitimately meet his medical expenses.

20. In the Tribunal hearing, the applicant gave evidence about his financial situation and payment for his medical treatment. He said that he pays for his medical treatment himself. He does not receive financial assistance from his family. When asked how he was proposing to support himself financially during his intended stay, he said that his salary is his main income and that is how he pays for his treatment, and his work is part of his treatment because doing it supports his mental health.

21. In the Tribunal hearing, the Tribunal also raised with the applicant its concerns over whether he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted (cl 602.215). Because this was not the basis on which the delegate made their decision, the Tribunal gave the applicant the opportunity to make written submissions and provide further evidence on this issue after the hearing.

22. In those written submissions dated 17 February 2023, the applicant provided additional documents as follows:

    ·     Another copy of the Medical certificate from Dr Bhagadatta Chakma, Swanston Street Medical Centre, Melbourne, dated 1 December 2022, which states that the applicant ‘has been suffering from major depression since 2019. He has been on antidepressant medication. He also requires ongoing counselling and support.’

    ·     Referral from Dr Chakma dated 6 February 2023 to ‘Psychologist, Melbourne CBD’, and which is addressed ‘Dear Psychologist’, and does not provide any details of to whom the referral is being made. The referral goes on to state:

    …

    Thank you for seeing [the applicant], age 37 years for counselling under Mental Health Plan. Mink has on going depression and anxiety due to his personal issues, he denied any past and family hx of depression and anxiety. Attached MHP and K10 score

    Current problems:

    Depression and anxiety

    Allergies:

    Unknown

    Current Medications:

    Lexapro 20 mg daily

    He requires on going Counselling with CBT. Please report me on progress.

    Yours sincerely.

    Dr Bhagadatta Chakma

    ·     Psychologist report dated 24 June 2020 from Dr Sandra Nguyen of Charles St Clinic, Seddon, Victoria. Dr Nguyen’s report sets out her analysis of the applicant and his situation and expresses the opinion that he fits the criteria for diagnosis of a Major Depressive Disorder with Anxious Distress;

    ·     The applicant’s two most recent payslips from Hampers With Bite Pty Ltd dated January 2023 and February 2023;

    ·     A photograph of the medication taken by the applicant which is Escitalopram (APX) tablets 20mg, prescribed on 5 January 2023 by Dr Chakma;

    ·     A printout listing the applicant’s 15 appointments with Dr Nguyen from 8 April 2019 to 10 June 2021.

23. In relation to financial resources, these written submissions dated 17 February 2023 state that the applicant is currently employed full time with Hampers With Bite and ‘this employment allows the applicant to have sufficient financial resources to cover the cost of his medical treatment during his temporary stay in Australia and to accommodate the current costs of living.’

24. The Tribunal has considered all the written and oral evidence provided by the applicant in support of his application. The Tribunal accepts that the applicant suffers from depression and anxiety, that he is currently taking medication for his condition, that he has seen a psychologist in the past and he is not currently seeing a psychologist. The applicant’s oral evidence about this in the hearing was that he had received counselling in the past with Dr Nguyen for two years until 2021, but he had not had any sessions since then and is not having counselling now. He said he had been taking medication to see how things go and then he will go back to Dr Chakma and ‘discuss about treatment’. As noted above, the applicant has provided a copy of a referral from Dr Chakma dated 6 February 2023 to an unknown psychologist. When asked by the Tribunal how long he wanted to remain in Australia for medical treatment, the applicant responded that he thought he needed two years to help him to recover.

25. The Tribunal accepts that the applicant is employed full time by Hampers With Bite Pty Ltd, that he is on an annual salary of $75,000 and that his employment with them is stable. The Tribunal notes that the applicant provided bank statements to the Department which showed that for the period 27 November 2020 to 27 January 2021, his opening balance was $384.25 and the closing balance was $418.78 and for the period 27 January 2021 to 26 March 2021, his opening balance was 418.78 and his closing balance was $581.82. The applicant has not provided evidence to indicate he has any other savings or income or financial support, or that he has accumulated significantly greater savings since March 2021. He has given evidence, which the Tribunal accepts, that he supports himself financially and does not receive financial support from his parents. His written submissions state that his employment allows him to cover his living expenses and the cost of his medical treatment during his temporary stay in Australia. On each occasion that the question of how the applicant would support himself if he were granted the visa has been raised with him, he has referred to his income from his employment. In the Tribunal hearing, in the course of putting its concerns to the applicant, the Tribunal indicated that it might not be satisfied that he has adequate funds to support himself during his proposed stay.

26. While the Tribunal accepts that the applicant currently appears to have adequate means to support himself due to his employment, as noted by the delegate and by the Tribunal, a Medical Treatment visa includes condition 8101 (cl 602.611(3). Clause 8101 states ‘The holder must not engage in work in Australia.’ As stated in the delegate’s decision, and referred to in the Tribunal’s letter dated 17 November 2022:

    Although the payslip was also considered, the applicant seeks a Medical Treatment (subclass 602) visa and this visa has condition 8101 (NO WORK) attached. Therefore, working to supplement the available funds would not be an option for the applicant had the visa been granted.

27. Therefore, the effect of the applicant being granted the Medical Treatment visa would be that he would no longer have legal permission to work. Based on all the evidence provided by the applicant about his financial circumstances, including his small amount of savings and lack of other income aside from his employment, the Tribunal is not satisfied that the applicant would be able to meet the cost of his living and medical expenses if he were not permitted to work in Australia while undertaking his proposed medical treatment as the holder of a Medical Treatment visa. While the applicant’s current Bridging Visa C permits him to work, the Medical Treatment visa would not permit this.

    Findings

28. Having considered all the applicant’s written and oral evidence, for the reasons explained above, the Tribunal is not satisfied that the applicant has adequate means, or access to adequate means, to support himself during the period of the applicant’s intended stay in Australia for the purpose of medical treatment.

29. Given the above findings, cl 602.216 is not met.

30. Give the Tribunal’s finding that the applicant does not meet cl 602.216, it is not necessary for the Tribunal to consider whether the applicant meets cl 602.215.

    Conclusion

31. 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

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

    Rachel Da Costa
    Member