Moustafa (Migration)

Moustafa (Migration) [2021] AATA 743 (17 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Moustafa Moustafa
CASE NUMBER:  1900501
HOME AFFAIRS REFERENCE(S):          BCC2018/5636904
MEMBER:Melissa McAdam
DATE:17 March 2021
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 17 March 2021 at 2:09pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – chronic depression and anxiety – visa history, including refusals of previous applications, unsuccessful reviews and appeals and period as unlawful non-citizen – less than specified age – no arrangements for ongoing medical treatment – original departure date now passed – reluctance to return to home country, but no effort to find alternative destination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 602.212(2)(b), (6), 602.215(1)(a), (b), (c)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 January 2019 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 December 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 (Cth) (the Regulations).
Visa Application
The following is a summary of the information the applicant provided in his visa application:
a.He is a 44 year old man from Egypt. He is separated from his wife.
b.He lives in Auburn, NSW.
c.He wishes to remain in Australia between 11 December 2018 and 10 December 2020.
d.He is applying for the visa as a person who will undergo medical treatment.
e.He will be under medical care between 11 December 2018 and 10 December 2020.
f.He has no close relatives in Australia.
g.He will use his own funds to support himself in Australia.
h.He has overstayed a visa and has an outstanding debt to the Commonwealth of Australia.
He did not provide the estimated cost for the treatment he needs.
A Form 1507 was completed by Dr Noureddine Houfani and stated the following:
-The applicant’s medical condition requiring treatment is “chronic depression and anxiety”.
-The treatment the applicant will receive is “need medication, need psychologist, need psychiatrist”.
-The name of the treating specialist is Dr Noureddine Houfani.
The applicant also attached a doctor’s prescription for the medication ‘cipramil’.
The delegate refused to grant the visa to the applicant. In the decision the delegate outlined the following:
-The applicant first arrived in Australia on 10 April 2008, as the holder of a Student Higher Education Sector (class TU) (subclass 572) visa. The applicant applied for and was subsequently granted a further two Student visas, with the last one ceasing on 20 April 2013.
-On 04 January 2013, the applicant applied for a permanent visa. The application was refused on 25 January 2013. The applicant unsuccessfully sought various avenues of review for the refused application including Federal Court, which resulted in a ‘Minister Win’ being recorded on 03 June 2014.
-On 10 April 2014, the applicant applied for a Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa. The application was refused on 23 June 2015. Again, the applicant unsuccessfully sought various avenues of review for the refused application including Federal Court, which resulted in a Minister Win being recorded on 10 May 2018.
-On 05 March 2018, the applicant lodged another application for another permanent visa. The application was deemed invalid.
-On 07 June 2018, the applicant, under Section 351, sought Ministerial Intervention, which resulted in an outcome of Not Referred on 21 June 2018.
-During the applicant’s time in Australia, the applicant has been an unlawful non-citizen for 13 months and 8 days. The applicant currently holds a Bridging E (class WE) (subclass 050) visa.
-On 14 December 2018, the applicant lodged an application for a Medical Treatment visa.
-The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it states they must remain in Australia for ongoing consultation. Information provided does not states that the treatment they are seeking is unavailable outside of Australia.
-In the 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 confirmed that the applicant has unsuccessfully applied for multiple permanent visas onshore and had taken every opportunity to present their case or circumstances for review.
-The delegate considered that the applicant has previously breached visa conditions and also remained unlawfully in Australia for a considerable period of time and did not contact the Department to resolve or regularise his immigration status.
-The delegate found that the applicant’s adverse migration history strongly indicated that he did not intend to remain temporarily in Australia for the purpose of receiving medical treatment and that he was seeking a visa pathway to remain in Australia.
-At the time of decision, the applicant had not presented any personally compelling or exceptional circumstances to warrant departure from the legislative requirement of the genuine visit criterion which is mandatory for the grant of a Medical Treatment visa.
-The delegate found that the applicant was attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that he did not genuinely intend to remain in Australia on a temporary basis.
-The delegate was not satisfied that the applicant met the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.
Information to the Tribunal
The applicant appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information the applicant provided at the hearing:
a.He applied for a Medical Treatment visa because he has depression and anxiety because of the problems he had.
b.He started medical treatment but not continuously. He last received treatment more than three or four months ago.
c.He was taking tablets but his condition got worse. His doctor told him it takes time for the medication to have effect. The applicant was worried he would become addicted to the medication so that he would be unable to stop taking it. He stopped taking the medication three to four months ago so that he didn’t become addicted. He is presently trying to use natural products and vitamins and to exercise and run.
d.He has no updated medical reports to submit to the Tribunal.
e.He did not leave Australia after December 2020 because he did not follow his medical treatment. The doctor told him it is not just treatment, he needs to keep himself busy. But he cannot work or study. The circumstances were not appropriate for him to leave, particularly with the corona virus.
f.He did not return to Egypt because from a medical point of view Egypt is not quite good and the political situation is not quite stable, but it is getting better now. Covid is quite a large problem in Egypt but no one is speaking clearly about it. The psychological care is also not good in Egypt. They do not consider psychological problems as illness, they think it is witchcraft. The Tribunal put to the applicant that there would be psychology doctors and hospitals in Egypt. He agreed but stated there were very few of them in the town where he lived, Benha. Also in Egypt there is religion and people with psychological problems are first referred to a Sheikh, and only later maybe to a doctor.
g.The Tribunal asked the applicant what arrangements he has made for his medical treatment. He responded that first he needs to work and study. He is looking over the Internet. He needs to look at different medication. He needs to organise his life. He knows what he will be doing, such as seeing a psychologist. He does not have a psychologist, but he has a regular doctor. He saw a psychologist three or four times when he was in Queensland, but he felt he received no benefit from the psychologist. He will see a different doctor in the future. He does not know who yet. He has asked around and has a few names but he hasn’t yet decided on a doctor. He anticipates the costs for a psychologist or psychiatrist will be quite high but his medication was not expensive. He has spoken to his brother in the USA who told the applicant when he starts treatment he will send the applicant money.
h.The applicant is asking for help so he can receive treatment and improve his life.
i.The Tribunal asked the applicant how he supports himself in Australia. He responded that he stays with friends and can receive help from them when he needs. He sometimes helps them as well.
j.He plans to leave Australia as soon as the situation improves in Egypt. The political situation is improving and the medical situation will improve with vaccinations. If it does not improve he will look to go elsewhere. He hasn’t decided where. He has been studying English and will be able to sit the IELTS test.
k.He has not taken any steps yet to find somewhere else to go because of his depression. It is very hard to take steps. He needs to be settled to be able to do this. His psychological state was really bad in the past. He had one problem after the other. So he was unable to leave Australia or go anywhere. He doesn’t know where to go or what to do. If he wants to go all he can think of is what happened in the past. He can go back to Egypt if he is not afraid to go back. It will bring back all the old memories. He can’t imagine going back to his house and his mother is not there. His mother passed away in 2015. His father passed away when the applicant was young.
l.In his town everyone knows everybody. They will ask and know that he was against the government and was with Mubarak.
m.He has one sister who still lives in Egypt. She is in Benha. He has a good relationship with her.
n.He needs to make arrangements for medical treatment however he plans to work and then start arrangements. He needs help and wishes he could receive this help. The situation he is in was never in his hands. He did not think he would be in depression and that his life would change so much.
o.If he is not granted a Medical Treatment visa he will have to seek somewhere else to go. He will return to Egypt if he is forced to, if he can’t find anywhere else to go to. He intended to come to Australia to study and then go back to Egypt. But three years after he came here everything changed. His wish was to go back and see his siblings and mother. Everything went in a different direction. Everything happened against his wish, such as the death of his brother and mother, getting married and then separated. All of these memories make him depressed.
p.His brother in the USA has not visited him in Australia. His brother would visit Egypt every year up until two years ago when he could not because of the corona virus.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
Is the applicant unfit to depart Australia?
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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The applicant was born in 1976 and is 44 years old. He therefore has not turned 50 so does not meet the requirements of cl. 602.212(6).
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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).
Clause 602.215(1) sets out the following:
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.
The applicant’s current bridging visa is subject to Condition 8101, which states that the applicant must not engage in work. The applicant gave evidence that he is staying with friends who help him when he needs. There is no cogent evidence before the Tribunal that the applicant is working in breach of this condition. Therefore the Tribunal gives him the benefit of the doubt that he is not engaging in work.
The applicant’s bridging visa is also subject to Condition 8207, which states that the applicant must not engage in study. There is no indication that the applicant is engaging in study.
The Tribunal is therefore satisfied the applicant is complying substantially with the conditions of his Bridging visa.
A Subclass 602 visa is subject to mandatory conditions 8101 and 8201. This means that the applicant will not be permitted to engage in work, and will have limited study rights, if granted the visa.
The Tribunal notes that the applicant has friends in Australia and a brother in the USA who are able to support him, at least in the short term. Given the subclass 602 visa is a temporary one the Tribunal accepts the possibility that the applicant can subsist in Australia through the help of friends and his brother, without resorting to work.
The applicant has expressed his wish to study in Australia. However there is no indication he has done so, or wishes to do so in breach of any relevant study condition. The Tribunal therefore gives him the benefit of the doubt that he intends to comply with a limited study condition.
Given the above the Tribunal accepts that the applicant can comply with the conditions to which the subclass 602 visa would be subject and so would intend to.
The Tribunal notes that the applicant has been in Australia, without departing, since October 2012. He has not left Australia despite not engaging in medical treatment for over three or four months. He has also remained in Australia past the December 2020 limit he expressed in his initial visa application.
The Tribunal discussed with the applicant the arrangements he had made for his ongoing medical treatment. The applicant gave evidence he has not made any arrangements for his ongoing medical treatment and that he is deferring doing so until his life is more organised. The applicant has not submitted any medical evidence that he requires further medical treatment or the details of the medical treatment he may require.
Given the applicant has not concluded arrangements for his medical treatment, the applicant does not meet the requirements of cl.6012.212(2((b) for the grant of the visa. Yet he has not taken any steps to depart Australia.
The Tribunal found the applicant’s evidence regarding his intentions to depart Australia vague and lacking in force or conviction. He spoke of the possibility of returning to Egypt as one he did not prefer to pursue. However he was unable to identify an alternative country to depart to. His reluctance to return to Egypt and lack of effort to find a viable alternative destination indicates his intention to depart Australia lacks both form and commitment.
In the Tribunal’s view the applicant has not been able to demonstrate that he genuinely intends to stay temporarily in Australia for the purposes of a medical treatment visa.
On the information before it the Tribunal is not satisfied that the 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.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Melissa McAdam
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).

[2021] AATA 743

17 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Appeal