Migdadi (Migration)

[2018] AATA 5013

Migdadi (Migration) [2018] AATA 5013 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hamza Ismail Mohammad Migdadi

CASE NUMBER:  1726024  

DIBP REFERENCE(S):  BCC2017/3334682

MEMBER:Linda Holub

DATE:15 October 2018

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 October 2018 at 4:36pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – no evidence of planned treatment – poor immigration history – use of visa program to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 602.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 9 October 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 September 2017. 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 applicant the visa because the delegate found that the applicant does not meet the requirements in Clause 602.215 of Schedule 2 of the Migration Regulations. .

4. The applicant was invited to appear before the Tribunal on 5 September 2018 to give evidence and present arguments.  On 22 August 2018, the applicant telephoned the Tribunal and advised that he would be unable to attend on the scheduled day.  He was advised that he must submit a request for a postponement in writing.  On 29 August 2018, the Tribunal received an email from the applicant advising that he cannot attend the hearing on 5 September 2018 as he has health issues following a discharge from hospital due to anxiety and some mental health problems. It states that his doctor advised him that he cannot stand the pressure of any situation. Together with that email the applicant provided a medical certificate from a general practitioner dated 29 August 2018 which states that the applicant is suffering from an anxiety disorder, no date is provided in relation to him being unfit for work and it states counselling in the “other” section. The applicant also provided a copy of an Emergency Department Discharge Referral from the Canterbury Hospital. The attendance date referred to is 7 August 2018. The diagnosis given on the discharge summary was anxiety.  It states that the report was written in retrospect as the patient refused any further investigations and opted not to wait for the discharge letter.

5. Following the receipt of the correspondence from the applicant, the Tribunal telephoned him and advised that on the basis of the information and medical evidence provided by him, the hearing would not be postponed.  The applicant was advised that the Presiding Member would consider a further postponement request if he were to submit medical evidence that specifically referred to his inability to give evidence on the scheduled hearing date, that is, 5 September 2018.

6. On 4 September 2018 the Tribunal received a letter from the applicant’s GP stating that the applicant suffers from anxiety disorder, lower back pain, neck and shoulder pain as result of a motor vehicle accident.  It states that he felt very anxious on the day of the letter and is unable to attend the hearing on 5 September 2018.

7. On the basis of the further medical evidence, the Tribunal agreed to the applicant’s request for a postponement.  A new hearing was scheduled for 19 September 2018.

8. On the afternoon of 18 September 2018, the applicant telephoned the Tribunal seeking a postponement of his hearing as he was still suffering from the conditions he had at the time of his initial hearing date.  He was advised that he was required to provide current medical evidence.  The applicant took up an option provided to him to have a telephone hearing and advised that he would still be consulting with his medical practitioner prior to the hearing and would call to confirm whether he will take part. 

9. Arrangements were made for the applicant to participate in the hearing by telephone on 19 September 2018 and an invitation letter with the revised arrangements was emailed to him at 4:36pm on 18 September 2019.

10) On the day and at the time of the hearing, the Tribunal telephoned the applicant at 12.53pm, 12.54pm 12.55pm and at 1.10pm to commence the hearing. He answered his phone at 1.10pm and stated that he would be seeking a postponement.

11) At around 1.30pm the Presiding Member called the applicant from the hearing room and confirmed with him that he wished to seek an adjournment of the hearing.  He responded in the affirmative.  He stated that he had an accident in May and was still dealing with the same issues that he had when his first hearing was scheduled on 4 September 2018.  The Presiding Member explained to him that in order for the hearing to be re-scheduled he would need to provide a medical certificate stating that he was unable to participate in a telephone hearing today.  He stated he was at the medical centre and would be able to obtain such a certificate.  The Presiding Member explained to him that on the basis it would agree to an adjournment.  He was told that if he did not attend a scheduled hearing the Member could move to dismiss his application for review.  He stated that he would like to have the hearing adjourned for a month.

12) On 20 September 2018, the applicant was invited to a resumed telephone hearing on 24 September 2018.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

14) 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 stay temporarily in Australia for the purpose for which the visa is granted

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

17) The records of the Department indicate that the applicant was in Australia at the time of application on 8 September 2017.  Accordingly, the Tribunal finds that he satisfies the requirements of cl.602.212(6)(a).  The evidence before the Tribunal indicates that he was born in August 1985 and has therefore not turned 50 years of age.  The Tribunal discussed this with the applicant and he confirmed his date of birth and that he is 33 years of age.  Accordingly, the Tribunal finds that as he has not turned 50 years of age he does not satisfy the requirements of cl.602.212(6)(b).  As he not satisfy the requirements of cl.602.212(6)(b), he is unable to meet the requirements of cl.602.212(6) in its entirety.

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

19) The applicant is not medically unfit to depart Australia and therefore the requirement at Clause 602.215 applies.

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

20) 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).

21) The applicant is a 33 year old Jordanian national.  At the time of application he sought the visa for the period 11 September 2017 until 10 September 2018.  In response to question 18 on the application form about the medical treatment he had arranged in Australia, no treatment was specified.  Rather, a number of conditions were listed – anxiety disorders, mental illness, fear factor and disillusion.  On Form 1507 of the application, the medical practitioner wrote that the medical condition requiring treatment is anxiety disorders and the treatment is counselling and anxiolytic tablet (although the GP’s writing is hard to decipher).

22) At hearing, the Tribunal explained that the  application for a Medical Treatment visa of the type applied for requires an applicant to specify treatment being sought and arranged but that his application, for the period 11 September 2017 until 10 September 2018 did not do so. The applicant stated that he was depressed.  The Tribunal explained that is a condition; not a treatment.  He then referred to his disc problem and his inability to walk.  He stated that at the moment he is having physiotherapy and referred to a psychologist. He stated that he has three hernias and needs to have an operation.

23) The Tribunal asked the applicant him in relation to his depression, disc problem and three hernias what evidence he can provide in relation to the treatment.  He responded that he has had 12 physiotherapy sessions and that he has another appointment later in the day.  He stated that he could obtain a letter from physiotherapist and he has a referral to the specialist for the operation.

24) The Tribunal asked the applicant about the number of sessions he has had with the psychologist.  The applicant responded that he saw his GP who referred him to a psychologist but has not had any sessions.  The Tribunal put it to him that it is concerned that he applied a year ago you for a Medical Treatment visa on the basis of suffering from anxiety and depression and anxiety but he has not had any treatment yet.  He said in response that his GP who understands his health has tried to convince him to see a psychologist, he did not want to show he is mentally unwell.  The doctor reassured him that it is OK to seek treatment.  He stated that even though he has not seen a psychologist he has seen his GP and is taking medication for anxiety. 

25) The applicant stated that his older brother lives in Australia and that his parents and five other siblings.in Jordan.  The Tribunal asked him about the level of support he would have in Jordan.  He responded that he all his family is there.  The applicant stated that he does not work and that his brother and sister-in-law look after him by providing him with food, money and accommodation.  He stated that he has no property in Jordan or any other assets.

26) The applicant stated he had a motor vehicle accident on 17 May 2018.  He was hit from the back and as a result of that he cannot move his neck or walk.  This is the reason he is having physiotherapy.  The Tribunal explained to the applicant that he should provide written evidence.  He stated that he was he was referred to a psychologist four days ago. 

27) The Tribunal also asked the applicant about the planned treatment for the hernias.  He said he could provide his x-rays.  The Tribunal explained again that it would need evidence of his planned treatment.  The Tribunal provided the applicant until Friday 5 October 2018 to provide written evidence in relation to the medical treatment he has arranged.

28) On 5 October 2018, the applicant emailed the Tribunal requesting an extension of time to provide written evidence. He wrote that the physiotherapy clinic is undertaking renovations and that he needs at least 10 days and that his next appointment with his psychologist is on 30 October 2018.  The Tribunal provided him until 12 October 2018 for any additional submissions.

29) On 12 October 2018, the applicant submitted:

a.A copy of a referral from a GP to a Dr David Youkhanis dated 3 September 2018.  It seeks an opinion and management of abdominal wall hernia started post a car accident.  It relation to his other conditions which are listed for 2018 and include adjustment disorder and motor vehicle accident.

b.An email from a physiotherapist with a date of 10 October 2018 which states that the applicant has been a patient for the past several months and that he will continue for the next 3-6 months under insurance.

c.A letter from a psychologist dated 11 October 2018.  It states that the applicant attended the consultation rooms on 9 October 2018 and that “it appears that [the applicant] is suffering from mixed anxiety and depression”.  It states that the applicant would benefit from cognitive behavioural therapy and that he was informed about the proposed treatment plan.

30) The Tribunal has had regard to the evidence provided by the applicant.  The Tribunal accepts that the visa applicant has been referred to a specialist in respect of diagnosed hernias, but notes that no treatment has been specified.  In relation to the applicant’s claims that he cannot walk or move his neck, the Tribunal notes that that no evidence in this regard has been provided.  The Tribunal acknowledges that a letter dated 4 September 2018 provided to the Tribunal from a different GP referred to the applicant is suffering, lower back pain, neck and shoulder pain as result of a motor vehicle accident but no reference is made in the letter to his inability to walk or move his neck.  This raises some concerns in that the applicant has exaggerated the seriousness of his condition.  The Tribunal accepts that the applicant has seen a physiotherapist but the certificate is not on letterhead, does not specify what treatment the applicant has received or will continue to receive, nor does it specify the condition being treated.  The Tribunal does not give it significant weight.  The Tribunal has had regard to the fact that the letter from the psychologist is dated 11 October 2018, well after his first hearing date was scheduled.  While the Tribunal acknowledges the applicant’s evidence that he was sensitive to the social stigma of having a mental health condition, the Tribunal nevertheless considers that in the light of the applicant claiming to have been diagnosed with depression and anxiety when applying for a Medical Treatment visa, it would not be unreasonable to expect that he would see a psychologist as recommended by his GP despite his sensitivities.  The Tribunal is concerned that the letter from the psychologist does not make a clear diagnosis.  It states “It appears that [the applicant] is suffering from mixed anxiety and depression”[1]. 

[1] AAT file, folio 98.

31) The Tribunal went through the applicant’s migration history with him as outlined on page three of the Department’s Decision Record.  It shows that he first came to Australia on a Sponsored Family Visitor (UL 679) visa in January 2009. He returned the following January on the same visa type. While onshore he applied for [Visa 1]on 30 April 2010 and was refused on 7 February 2011.  The applicant stated that he withdrew the application.  The Tribunal read the relevant part of the delegate’s decision which refers to [the visa 1] application being refused in July 2011.  In August 2011 he applied for a Combined Partner UK (UK 820/BS 81). As part of that application he requested a waiver of condition 8503. That application was refused on 1 September 2011.  Later that month on the 20 September he lodged an application for his first medical treatment visa. On 25 July 2011 the applicant lodged a Request for Ministerial Intervention.

32) The Tribunal discussed the applicant’s migration history with him and explained that it was concerned that he will not leave Australia if he were to be granted the visa and asked him if he wished to comment.  He responded that when the AAT (differently constituted) considered his application for review in relation to his Partner visa it was unfair to him.  He stated that he had been with his wife for two years.  The Tribunal explained to the applicant that it is not in a position to comment on a previous review and the issue it must consider is whether he will leave Australia at the end of the visa period if it were granted.  He stated that he feels he has not been given justice.  He stated that he is now engaged to a different person.

33) When asked if he wished to add anything further, he asked that the Tribunal in making its decision not take account of his migration history but to only look at whether he has previously complied with his visa conditions.  The Tribunal explained to him that looking at whether he previously complied with his visa conditions requires it to at the history.  The Tribunal explained to the applicant that it appeared he was making every endeavour to remain in Australia.

Overall findings

34) The Tribunal has considered the applicant’s migration history the incentives for the applicant to remain in Australia and the written evidence in relation to his medical treatment.  The Tribunal has had regard to the fact that the applicant has been onshore since 2010 and has been on a number of Bridging visas since that time during the processing and consideration of his various permanent visa applications.  It is the view of the Tribunal that this indicates the applicant wishes to remain in Australia.  The Tribunal has considered the evidence before it in relation to the applicant’s proposed medical treatment and as already stated, the Tribunal has a number of concerns in relation to the evidence and is therefore not satisfied that the evidence substantiates the applicant’s claims.  Furthermore, the Tribunal is concerned that the applicant his is now engaged, which provides an incentive for him to remain onshore, possibly in breach of the conditions of this visa if it were to be granted.

35) Given the above findings, cl.602.215 is not met.

36) 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

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

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).