Maharjan (Migration)

[2022] AATA 4456

Maharjan (Migration) [2022] AATA 4456 (7 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahil Maharjan

CASE NUMBER:  2113704

HOME AFFAIRS REFERENCE(S):          BCC2021/1694667

MEMBER:Mark Bishop

DATE:7 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 07 November 2022 at 11:53am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – period of unlawful residence – applicant intends to work – no current evidence of medical treatment – applicant ceased studies enrolment – maintaining ongoing residence in Australia – 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 20 September 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 31 August 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 applicant failed to satisfy the criteria set out in the relevant Migration Regulations.

4. The applicant appeared before the Tribunal on 7 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The applicant’s spouse is part way through a course in enrolled nursing prior to pursuing further study in the nursing field.

5. The applicant provided a copy of the decision record to the Tribunal. The applicant was represented in relation to the review.

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.

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

8. 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.

9. Clauses 600.215 and 602.212 are set out immediately below:

   602.215

   1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a) whether the applicant has complied substantially with the conditions to which the last

   substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b) whether the applicant intends to comply with the conditions to which the Subclass 602

   visa would be subject; and

   (c) any other relevant matter.

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

10. Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:

    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.

11. Clause 602.212 (6) (f) provides as follows:

12. “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

13. The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

14. Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”

15. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

16. The applicant was born on 2 July 1999. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

17. Hence the applicant does not meet the criteria set out in cl.602.215 (6).

18. Accordingly the Tribunal turns to cl.602.215.

19. The delegate summarised the applicant’s visa/immigration history as follows:

    ·The applicant lodged an application for a Medical Treatment visa. It is stated that they would like to remain in Australia to seek medical treatment

    ·During the assessment of this application, Departmental systems were consulted and the amount of time already spent in Australia along with the applicant's migration history gave rise to concern over the applicant's intention to be a genuine temporary entrant and their incentive to return to their home country.

    ·On 31 August 2021, the applicant was sent a Natural Justice letter inviting them to comment and provide evidence regarding their intention to be a genuine temporary entrant, their incentive to depart Australia and their migration history.

    Departmental records demonstrate that:

    ·The applicant arrived in Australia as a Student (subclass 500) visa holder in 2019 and apart from one short departure they have maintained residence onshore ever since.

    ·The applicant overstayed their visa and remained in Australia as an Unlawful non-Citizen for two and a half months until they were granted a Bridging (subclass 050) visa based on their stated intention to depart Australia. The applicant did not depart and remains onshore.

    ·The applicant now makes a request for a Medical Treatment (subclass 602) visa. This is a short term visitor visa however the applicant requests an extended further stay in Australia of one (1) year.

    ·A response period of seven days was afforded to the applicant to provide a response to the Natural Justice letter regarding their Migration History. An extension of time was requested and approved until 14 September 2021. The applicant made contact and stated that they require time past 14 September 2021 until the end of that week. This additional timeframe has now elapsed and to date, no response has been received by the Department.

    ·Although it is acknowledged that the applicant may be seeking medical treatment in Australia, the applicant must nevertheless satisfy the decision maker that they intend to comply with visa conditions, be a genuine temporary entrant and that they have incentive to depart Australia if a visa were to be approved.

    ·In their Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future.

    ·Departmental records confirm that the applicant has overstayed a previous visa and remained in Australia as an Unlawful Non-Citizen. Without evidence being provided as per the Natural Justice request, I find that their migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis.

    ·I have considered the claims and supporting evidence that the applicant has provided with their application. I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

20. In his Application for a Medical Treatment Visa dated 31 August 2021 the applicant declared the purpose of his stay was “Medical treatment…or consultation in Australia…”, that he was self-funded, would try to support himself, had some savings and could work, declared he would be under medical care in Australia from 30 August 2021 until 30 August 2022 for “Psychological, Counselling & Mental Health Treatment” at Strathfield Plaza Family Medical Centre.

21. The applicant provided a copy of a Form 1507 dated 25 August 2021 and signed by a Dr.Piyush Sinha that outlined a medical condition of anxiety/depression and treatment information as GP counselling and sessions with a psychologist. The applicant advised the Tribunal he had not complied with this treatment plan. The applicant advised the Tribunal he had not undergone any medical treatment.

22. On 6 October 2022 the Tribunal wrote to the applicant and invited him to attend a hearing on 7 November 2022. The Tribunal advised the applicant to “please provide all documents you intend to rely on to support your case by 31 October 2022.”

23. The applicant did not respond to the request as outlined in paragraph 22 above. The applicant did not provide any documents to the Tribunal.

24. In evidence to the Tribunal the applicant advised as follows:

    ·He had resided in Australia since 2019 as the holder of successive temporary visas. He originally held a student visa but from February 2020 until the present time had discontinued his studies and had not been enrolled  in any course of study.

    ·He felt ill and under pressure during the period 2019 until mid-2021. His grades suffered and he failed many subjects. Covid-19 in Nepal affected his family and his father was quite ill for a long time. He felt stressed and wanted to go home but could not leave Australia. His academic outcomes continued to be poor. He lacked motivation. His family business was harmed by the spread of Covid-19 in his home country and this affected his well-being.

    ·He married in May 2022 and lives with his wife. Both the applicant and his wife work in Australia and their family income is approximately $1,900 net per week.

    ·He had not been receiving any medical treatment in Australia since time of his Application for a Medical Visa. He advised for most of that time he had ben recovering and felt better and did not feel the need for professional medical assistance.

    ·He read out a letter from a psychologist dated 20 July 2021 that outlined his mental condition until the time of his Application for a Medical Visa. He confirmed he had not received any medical treatment since this time and did have any current appointments to seek medical assistance. He thought he might like to see a doctor in late December. He did not provide a copy of the medical letter he read to the Tribunal (despite a request from the Tribunal prior to the hearing). He failed to provide evidence of future medical appointments.

    ·Despite a significant income and sporadic financial assistance from his family in Nepal he was unable to enrol in any courses of study for almost 2 years and at date of decision despite working has not been unable to enrol in any course of study. He remained not enrolled in any course of study during calendar year 2022.

    ·His wife holds a student visa.

25. The applicant has resided in Australia since 2019. He has held successive temporary visas. His academic outcomes have been poor. He married in May 2022. He and his wife enjoy a substantial income. He suffered during the period of Covid. He failed to study from 2020 until time of decision. He worked and earned an income during much of that time. He applied for a Medical Treatment Visa and failed from date of application to undergo any medical treatment. The Tribunal is of the view the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

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

    Concluding paragraphs

27. 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

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

    Mark Bishop
    Senior Member