Naidu (Migration)

[2022] AATA 4217

Naidu (Migration) [2022] AATA 4217 (21 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jyoti Artika Naidu

CASE NUMBER:  1911521

HOME AFFAIRS REFERENCE(S):          BCC2015/2576904 BCC2015/2624383 CLF2010/79095 CLF2017/106557 CLF2018/194666

REPRESENTATIVE:   Sai Priya Sivalohan

MEMBER:Linda Holub

DATE:21 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 21 October 2022 at 8:20 am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adult over 25 dependent on parents – requirements of becoming dependent since last applying for substantive visa and incapacity for work – previous application for medical treatment visa claiming dependency then, and evidence of dependency before then – other applications, refusals, application for ministerial intervention and period as unlawful non-citizen – timing and level of dependency and incapacity – deterioration in physical and mental health conditions since medical treatment visa application – lack of specificity in medical certificate from GP and no referrals to specialists – opinion of medical officer of commonwealth – compelling or compassionate circumstances – significant links to Australian citizen relatives – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 359AA
Migration Regulation 1994 (Cth), rr 1.03(b), 1.05A(1)(b), 1.12(2)(b)(ii), Schedule 2, cls 802.211, 802.212(1)(b), Schedule 4, criterion 4007(1)(c)(ii)(A), (2)

CASE
Huynh v MIMA [2006] FCAFC 122

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 Home Affairs on 18 April 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 September 2018. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.211 and cl.802.212(1)(b).

4. The delegate refused to grant the visa on the basis that:

   a.     cl.802.211 was not met because the delegate found that the applicant was a dependent child of the sponsor (an Australian citizen) prior to the last application for a substantive visa which was lodged on 8 September 2015 and on that basis, the delegate found that the applicant has not become a dependent child of the sponsor since last applying for a substantive visa. Therefore, as the applicant was a dependent child of the sponsor prior to last applying for a substantive visa, she does not meet clause 802.211.

   b.     cl. 802.212(1)(b) was not met because the delegate was not satisfied that the applicant has a medical condition that meets the definition of being "incapacitated for work due to the total or partial loss of the child's bodily or mental functions" under subparagraph (b)(ii) of the definition of dependent child.

5. On 8 September 2021 a request for hearing postponement was received via email from the applicant’s representative advising the Tribunal that her parents who were both listed as witnesses were unwell and unable to attend the hearing and give evidence. While medical certificates were provided in support of postponement, they did not indicate that either of her parents were unable to give evidence nor did they indicate when they would be able to do so. The Member considered the request and decided not to postpone the hearing. The applicant was advised she could provide further medical certificates regarding the inability of her parents being able to provide evidence, but the certificates should make it clear if her parents are unable to provide evidence from home by telephone or video link and the reasons for that.

6. The review applicant appeared before the Tribunal on 8 September 2021 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 video through the Microsoft Teams application. 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 applicant. 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 video.

7. The Tribunal also received oral evidence the applicant’s parents.

8. A further hearing was held on 29 May 2022. The applicant was first invited to an in-person hearing on 21 April 2022. She sought and was granted three postponements and indicated to the Tribunal that she preferred a video hearing. A third hearing was held on 15 September 2022. In view of the applicant’s, the second and third hearings were also held by video link. No concerns were expressed by the applicant in regard to the hearings being conducted in this way nor was there any indication that she had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant was represented in relation to the review by her migration representative who attended all three hearings; also, by video link.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Request for Decision Record

1. On 8 May 2020 the Tribunal wrote to the applicant requesting she provide the Tribunal with a complete copy of the Department’s Decision Record. On the same day the Tribunal received a response from her migration representative. The letter was under the signature of Ms Sivalohan (Senior Associate). It states that the letter has been sent under instruction of Ray Turner (of the same legal practice) and states that the “notification of the decision provides sufficient information regarding the refused visa application made by the applicant. There is no obligation to provide a copy of the decision record. The Tribunal will have access to the decision record through the Department file”.

2. There is nothing in this response which indicates that the Tribunal’s request was discussed with the applicant and that it was her decision not to provide the Department’s Decision Record.

3. At the end of the first hearing the Tribunal asked why the Department’s Decision Record was not provided to the Tribunal. The applicant’s migration representative made oral submissions in response. She told the Tribunal that the reason they did not provide it was because of section 359a(4b), and mainly that’s because the firm works in the courts, and generally decision records are used against applicants in court. She stated that they are given the decision record as part of the application for review and information is not put to them afterwards so that is the reason why they did not provide the decision record to the Tribunal. She added they are aware that the decision record is held on the Department file which the Tribunal has access to.

4. The Tribunal considers it is reasonable for applicants to provide a copy of the Department’s Decision Record to it. The argument put forward by the applicant’s migration representative does not sufficiently explain the reason for not providing the Decision Record to the Tribunal as it is generally available in court proceedings regardless of whether an applicant provides it to the Tribunal or not.

Late submissions

1. Another concern the Tribunal has in relation to the applicant’s migration representative’s approach relates to the timely provision of submissions to the Tribunal.

2. On 17 June 2022 the Tribunal wrote to the applicant and referred to the fact that when the Tribunal adjourned the 30 May 2022 hearing the Presiding Member indicated that a further hearing may be required to put any outstanding issues to her. That letter outlined that the Tribunal had decided it would need to further discuss provisions of cl. 802.212 with her and outlined those provisions. The letter invited the applicant to a hearing on 7 September 2022 following a leave of absence by the Presiding Member.

3. At 17.03 on 6 September 2022, the Tribunal received an eight-page submission from the applicant’s migration representative. No explanation was provided regarding the lateness of the submission. The Tribunal wrote to the applicant on 7 September 2022, in the following terms:

   “On 17 June 2022 we sent a letter inviting you to attend a hearing on 7 September 2022 to give evidence and present arguments relating to the issues arising in your case.

   You responded on 5 September 2022 indicating you would attend the hearing.

   On 6 September 2022 at 17:03, the Tribunal received an eight-page submission provided by your migration representative on your behalf.

   Registered migration representatives would be aware of Practice Directions made by the President of the Tribunal. Of relevance here, is COVID-19 Special Measures Practice Direction – Migration and Refugee Division. This Direction was given under section 18B of the Administrative Appeals Tribunal Act 1975 (AAT Act) by the then President on 2 March 2021. Clause 6.11 relates to the lodgement of submissions prior to hearing and states.

   Lodging documents prior to the hearing

   6.11 Unless the Tribunal has allowed otherwise: (a) all evidence, including witness statements or outlines of evidence; and (b) any written submissions you want the Tribunal to consider; must be lodged at least seven (7) days before the hearing.

   6.12 If you have a representative, to the extent possible, the documents should be in searchable PDF format with: (a) each document given a separate number; (b) each page numbered sequentially; and (c) an index with the pagination set out and links to each document.

   6.13 If documents are lodged less than seven (7) days before the hearing, you must explain why in writing when you send us the documents. The Tribunal may reschedule the hearing to the next earliest opportunity, usually within seven (7) days’ time.

   As the Practice Direction regarding the lodgement of documents prior to the hearing has not been complied with nor was any explanation provided as to why it was not complied with, the Presiding Member will not be proceeding with the scheduled hearing. She is of the view that given the invitation was sent to you on 17 June 2022 you and your representative had considerable notice of the hearing date as well as the particular issue to be discussed at hearing which was outlined in the invitation.

   Furthermore, the Tribunal is concerned of the apparent disregard of the Practice Direction and disrespect shown to the Tribunal in view of the fact that no explanation was provided as to why the submission was provided on the day before the hearing”.

4. On the afternoon of 8 September 2022, the applicant’s representative sent an email to the Tribunal referring to section 18B the Administrative Appeals Tribunal Act 1975. She wrote that the President’s directions provides for the President to give to the Tribunal directions as to the manner in which the Tribunal conducts its review and that it does not give the President the power to give directions binding on applicants on how they prepare their cases. She added that the Federal Court of Australia has consistently held that the Tribunal must consider all evidence and material received up to the time its decision is published.

5. The migration representative wrote that no disrespect was intended in providing the submissions the day before the hearing. She referred to being on leave for two months and returned to the office on 5 September 2022, the submissions requested could only be provided the day before the hearing. She stated that the submissions provided on 6 September 2022 were merely a summary of the previous submissions given to the Tribunal on two occasions, namely 7 September 2021 and 23 September 2021. Therefore, this material was already before the Tribunal for a substantial period of time and the submissions were not providing any new information, only reiterating what has already been given to the Tribunal.

6. The Tribunal considers the attitude displayed by the applicant’s migration representative to be disappointing and unhelpful. The Tribunal acknowledges that the President’s Directions are not binding. However, the point is, migration representatives have an obligation to work in the best interests of their clients. In that regard, it can reasonably be expected that providing the Tribunal sufficient and reasonable time to consider submissions suggests that a migration representative’s professional integrity would see the benefit of providing submissions in advance of hearings consistent with the Practice Directions for proper and full consideration.

7. Furthermore, by stipulating that written submissions are to be lodged at least seven days before the hearing the President’s Direction in no way implies that Tribunal members would not consider all evidence and material received up to the time its decision is finalised.

8. Sub-clause 6.3 of the Directions states that in circumstances where documents are lodged less than seven days before the hearing, applicants must explain in writing why this is the case, and the Tribunal may reschedule the hearing to the next earliest opportunity.

9. The Tribunal notes and has had regard to the migration representative’s advice that she was away for two months and returned to duty the day before the submission was provided on 6 September 2022. In addition, the Tribunal notes that she also advised that no new material was provided. It is not clear to the Tribunal why she did not explain these two matters in her covering email when she provided the submission.

10. Regardless of the migration representative’s views on the President’s Directions, it is not unreasonable to expect that in her coving email she could easily and helpfully have added another sentence or two explaining that she had returned from leave the previous day and that the eight-page submission was reiterating evidence previously provided. This approach would have been the more professional and helpful one and shown respect to the work of the Tribunal and been in the applicant’s best interests. It would have obviated the need for a postponement of the applicant’s final hearing.

Migration history (detailed) and previous claims and evidence provided to the Department

1. The applicant who was born in Fiji in March 1979 and arrived in Australia on 8 July 2002 on a Student (subclass 572) visa. In July 2002 she was granted a Granted Higher Education Sector (subclass 573) visa and in July 2005 granted a Tourist (subclass 676) visa with further Tourist visas granted in October and December 2005. Her application on 18 January 2006 for a further Tourist visa application was refused on 17 February 2006 and that decision was affirmed by the former Migration Review Tribunal on 4 July 2007. The applicant’s Bridging B (subclass 020) visa ceased, and she became an unlawful non-citizen.

2. In June 2010 the applicant applied for a Remaining Relative (subclass 835) visa. It was not until 29 July 2015 that she was notified that her application was invalid. The Department found that it was not valid because it did not meet section 48 of the Migration Act 1958 (the Act). She was not permitted to apply for an Other Family (Residence) (class BU) visa because she did not hold a substantive visa after last entering Australia.

3. The applicant subsequently lodged an application for a Medical Treatment (subclass 602) visa) which was received by the Department on 3 September 2015. In relation to the required treatment, the applicant declared that she had been referred by her GP, Dr Hardy Lim to Rehab Solutions Australia, Fairfield, and that Dr Lim had recommended that she receive consultation and treatment for psychological stress and depression issues which had arisen since she was informed that her Resident Return visa was valid (sic). Related documents provided to the Department include a referral to Rehab Solutions Australia by Dr Lim dated 1 September 2015. No evidence was submitted  from Rehab Solutions Australia.

4. In a letter dated 3 September 2015 accompanying her application the applicant stated:

   a.     She is currently experiencing a lot of stress, anxiety and feelings of depression. She has experienced feelings of stress and anxiety for the last few years while waiting for a decision on her Remaining Relative visa application.

   b.     She has remained in Australia for a number of years as a Bridging visa holder. She has not worked during this period as she did not have work rights.

   c.     When needed she has helped her mother with her business by giving her some accounting advice and assistance. Other than spending a few hours a week helping her mum, she has spent most of the time with her family.

   d.     Because of the situation she now experiences very deep and serious levels of stress and anxiety. This is affecting her mood, her sleep, and physical health. Her General Practitioner, Dr Hardly Lim provided a referral letter for psychological consultation and treatment at Rehab Solutions Australia.

   e.     She needs to remain in Australia to receive psychological health consultation and treatment and support and care of her family.

   f.     Dr Hardy has also determined she has high blood pressure which could be as a result of the stress, anxiety, and depression she was experiencing. He suggested she could lose some weight and get some regular exercise as this could also be contributing to her high blood pressure and health issues.

5. On 4 September 2015, the Department made a decision on her application. The Decision Record states that to meet the requirement for clause 602.213, specifically criteria 3001 a Medical Treatment Visa (subclass 602) must be lodged within 28 days of the applicant’s last substantive visa ceasing. The applicant's last substantive visa, a Tourist (TR-676) visa ceased on I8 January 2006. The delegate therefore found that the applicant did not meet the requirements of clause 602.213, specifically criterion 300I, as the Medical Treatment visa application was lodged more than 28 days after the last substantive visa ceased

6. On 8 September 2015 the applicant again applied for a Medical Treatment (subclass 602) visa which was refused on 9 September 2015. In that application she made the same declaration that she had been referred by her GP, Dr Hardy Lim to Rehab Solutions Australia and that Dr Lim had recommended that she receive consultation and treatment for psychological stress and depression issues which have arisen since she was informed that her resident return visa was valid (sic). No evidence was submitted to the Department that she attended an appointment with Rehab Solutions Australia. The referral from Dr Lim dated 1 September 2015 refers to a ‘stress problem’.

7. On 9 September 2015, the Department again found that as the applicant did not hold a substantive temporary visa at the time of application that she did not meet clause 602.213 in Schedule 2 and the additional Public Interest criterion 3001 in Schedule 3 to the Migration Regulations which requires the application to be validly made within 28 days after the day when the last substantive visa ceased to be in effect. As the applicant's last substantive visa (TR-676) ceased on 18 January 2006and she applied for the Medical Treatment on 8 September 2015, more than 28 days after the last substantive visa had ceased.

1. The applicant sought review of the Department’s refusal of her 3 September 2015 application by the AAT (differently constituted). The refusal decision was affirmed on 4 December 2015.

2. The applicant applied to the Minister seeking the exercise of the Minister’s public interest power under section 351 of the Migration Act 1958 (the Act), however on 21 March 2017, the Minister decided not to intervene.  

Current application – evidence provided to the Department

1. As documented elsewhere, on 5 September 2018 the applicant applied for this Child (subclass 802) visa on the basis the applicant is a dependent child of her sponsor as she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

2. To support the applicant’s current application a variety of documents were provided to the Department in addition to the submission from her migration representative including a medical certificate dated 30 August 2018 from her GP, the applicant’s father’s ATO Notice of Assessment for the financial years ended 30 June 2016 and 30 June 2017, a copy of his Westpac bank account summary as at 26 October 2017, evidence of his Westpac term deposit account, and his Westpac eSaver account statement for the period of 8 February 2017 to 8 August 2017, Westpac Choice account statement for period 3 March 2017 to 1 September 2017, Westpac Reward Saver account statement for period 15 November 2016 to 15 May 2017 as well as the applicant’s Westpac Choice account statement for the period 31 August 2017 to 29 September 2017.

3. In the sponsorship form completed by the applicant’s father he stated at question 60 that the applicant does not reside with him and his wife and at questions 61 and 62 he wrote referring to the applicant, ‘I will continue to pay her rent, so she is able to reside in her own dwelling' and ‘she will continue to reside in her own dwelling which I pay the rent for’.

4. At questions 40 and 41 in her application no details of any employment were provided, nor did the applicant provide any employment history and at Question 42 in relation to financial support the applicant declared that her parents provide $200 per week for her food, clothing and travel such as train tickets and Opal card and that the support has been provided since August 2002. In a section on “other sources” she declared her parents have paid all bills including her rent, electricity, phone, internet, and gas. A bank statement was provided showing regular payments made into the applicant’s account from her parents.

5. The medical certificate dated 30 August 2018 from her GP Dr Hardy Lim provided to the Department, states the applicant “is suffering from a skin condition caused by anxiety and depression which causes her to scratch all the time. It stated she also has problems with hypertension and these mental and physical conditions mean that she is incapacitated for work”.

6. The submission from the applicant’s migration representative dated 4 September 2018 states that the applicant has never worked and since the diagnosis has become unable to work, now and in the future and therefore has become a dependent child. It states she has been financially supported by her father since the diagnosis on 30 August 2018. It was submitted that she is incapacitated for work

7. The submission refers to a diagnosis made by Dr Lim on 30 August 2018 and on a section on financial independence it was submitted:

   a.     reference was made to a letter from the visa applicant’s father dated 30 October 2017 stating:

   "This is to confirm that I MR. GOPAL NAIDU, am the father of Jyoti Artika Naidu and that I will support my daughter in every way during her stay in Australia as she awaits her visa. I am more than happy to provide funding to my child for any and all sort of her expenses, i.e., rent, food, clothing, shelter, pocket money, bills, internet, medical expenses, leisure etc. I am able to fund all these expenses and my bank statements, which are enclosed, evidence this.”

   b.     that the visa applicant’s financial dependence on her father is evidence of her incapacitation for work.

   c.     it states that due to the applicant suffering depression and anxiety she also suffers from a skin condition which causes her to scratch all the time. Additionally, she has hypertension.

   d.     it was submitted that the applicant is a dependent child as she is incapacitated for work due to the partial loss of her bodily and mental functions. The combination of these medical illnesses means that she is incapacitated for work, as diagnosed by Dr. Lim on 30 August 2018.

8. On 5 March 2019 the Department wrote to the applicant and requested 'Evidence of change in dependency’. The letter stated that as the applicant had not departed Australia since her previous application for a Medical Treatment (subclass 602) visa was refused and as she held a Bridging visa when this application was lodged, she is required to demonstrate that she has become a dependent child of her sponsor since her last valid application was lodged. The letter refers to previous information and evidence provided by the applicant in support of various visa applications. It notes that she has remained in Australia for a number of years as a Bridging visa holder and that she did not work during this period as she did not have work rights. The letter states that based on the information she provided in her application it appears she has been a dependent child of her sponsor at the time she lodged her Medical Treatment visa and also refers to the fact that the applicant was claiming in this application to be suffering from the same conditions that she had when she applied for the Medical Treatment visa. She was asked to provide evidence that she has become a dependent child of the sponsor since she last applied for a substantive visa.

9. On 1 April 2019 the applicant responded to the Department. She provided a copy of a letter from Dr Lim dated 29 March 2019 stating that she was seen by him that day and that her medical condition has worsened since 2016 and that he sees a real need for her to have some psychological counselling. He wrote that this is due to the applicant suffering from anxiety and depression which has caused her to develop compulsive itching and scratching. He wrote that she is not capable of normal independent life and referred to the uncertainty about her application for permanent residency.

10. In the covering letter from her migration representative, he repeated the information provided by Dr Lim stated that as her condition has significantly worsened since 8 September 2015, and that she has become a dependent child of her parents since the last visa was refused and therefore meets the requirements of 802.211 of Schedule 2 of the Migration Regulations 1994.

11. On 2 April 2019 the Department was also provided with a Psychological Initial Report dated 2 April 2019 from Rehab Solutions Australia which provided a history and outline of “problems presented” and indicates that a psychometric assessment of the applicant had been undertaken and provided a clinical opinion and a proposed treatment plan.

12. The report states that based on the applicant’s self-reporting and psychometric assessment and observations, the psychologist was of the opinion the applicant was assessed Chronic Adjustment Disorder with mixed anxiety and depressed mood. It goes on to say that the applicant would benefit from appropriate psychological treatment that would involve a programme of 6 - 10 weekly sessions of supportive counselling to assist her anxiety and depression issues. It states that she presented as a willing participant enhancing the probability of a successful outcome.

Written evidence provided to the Tribunal

1. In the context of the review application, the Tribunal was provided with:

   a.     a statement from the applicant dated 1 September 2021.

   b.     a detailed submission from the applicant’s representative.

   c.     letters of support from the applicant’s parents dated 2 September 2021, her brother dated 27 August 20121 and a friend dated 25 August 2021.

   d.     a “Psychological Support Letter” dated 1 September 2021 from a registered psychologist at Rehab Solutions Australia.

   e.     various bank statements of the applicant’s and her parents.

   f.     a copy of letter regarding the purchase of a property by the applicant’s brother and his partner.

   g.     copies of letters from the applicant’s GP, one of which is dated 30 August 2018 and the other is dated 7 September 2021.

   h.     information about adjustment disorders sourced from Hopkins Medicine.

Evidence provided at the first hearing

1. The applicant told the Tribunal that she first came to Australia in 2002 to study at TAFE and they said she should go to university. She attended the University of Western Sydney but did not finish her studies and stopped studying in 2005.

2. The applicant told the Tribunal she was granted a Bridging visa and then applied for a Remaining Relative visa and later was advised that the application was invalid. When asked if she was unlawful for a period, she stated that she was unsure, but she may have been for a few weeks. She stated that if she was unlawful, it was not deliberate, “not in the sense of breaking any law in Australia”.

3. The Tribunal referred to information contained in the Department’s file BCC20152576904 and put it to the applicant under the provisions of s.359 AA of the Migration Act. The information states that on 1 August 2007 the applicant’s Bridging B (subclass 020) visa, granted in association with her refused Tourist visa application, ceased. Thereafter she remained in Australia as an unlawful non-citizen for almost three years, until she applied for a Remaining Relative visa. She submits the reason she remained unlawfully was because she was unaware that her last substantive visa had ceased. It also states that this belief is possibly inconsistent with departmental records which indicate hat in June 2008 Ms Naidu was advised by telephone of the need to attend a departmental office to discuss her visa status.

4. When asked if she would you like to respond now or after the hearing in writing. She responded that she would respond in writing after the hearing.

5. The applicant told the Tribunal that after she finished studying, she did not work. She stated that her parents have always supported her since then and that she has been physically, emotionally, and financially dependent on her parents.

6. The Tribunal also put it to the applicant information she provided to the Department in a letter dated 3 September 2015 accompanying her Medical Treatment (subclass 602) visa) application she wrote that:

   a.     She is currently experiencing a lot of stress, anxiety and feelings of depression. She has experienced feelings of stress and anxiety for the last few years while waiting for a decision on her Remaining Relative visa application.

   b.     She has remained in Australia for a number of years as a bridging visa holder. She has not worked during this period as she did not have work rights.

   c.     When needed she has helped her mother with her business by giving her some accounting advice and assistance. Other than spending a few hours a week helping her mum, she has spent most of the time with her family.

   d.     Because of these experiences she now experiences very deep and serious levels of stress and anxiety. This is affecting her mood, sleep, and physical health etc. She saw her General Practitioner, Dr Hardly Lim. He has provided the attached referral letter for psychological consultation and treatment at Rehab Solutions Australia.

   e.     She needs to remain in Australia to receive psychological health consultation and treatment and support and care of her family.

   f.     Dr Hardy has also determined she has high blood pressure which could be as a result of the stress, anxiety and depression she was experiencing. He suggested she could lose some weight and get some regular exercises as this could also be contributing to her high blood pressure and health issues.

7. The Tribunal put that information to her in the term required under section 359 AA and explained why the information was being put. She stated that she would respond in writing.

Evidence provided by the witnesses

1. The applicant’s father stated that he is willing to help his daughter as long as he lives. He stated that she is not well, and they will take care of her. He stated that he had a heart bypass and it had taken a toll on his health.

2. When asked how long he has been supporting the applicant, he responded they have been doing so since 2009. He stated they have provided whatever she needs including financial and emotional support.

3. The Tribunal told the review applicant’s mother that it has read the statements she has provided and asked her if there is anything further, she wanted to say in support of the application. She stated that she makes a humble plea on behalf of the applicant. She stated they are supporting the applicant even though their own health is deteriorating. She stated they have funds, and they will continue to support her. 

4. When asked how long she and her husband has been supporting the applicant she responded they have supported her since they arrived in Australia in 2009.

Summary of issues put to the applicant

1. The Tribunal explained to the applicant that the oral evidence indicates that she has been dependent on her parents well before she last lodged her application for a Medical Treatment visa on 8 September 2015 and that this appears to be consistent with the written evidence provided in support of past visa applications. When asked if she wished to respond the applicant stated that she understands that she has been dependent on her parents since 2010. She stated that her definition of dependency is slightly different to the way the department defines it.

2. The Tribunal provided her until close of business on 23 September 2021 to respond to the issues raised during the course of the hearing.

Post hearing submissions

1. On 23 September 2021 the applicant responded with further submissions and a letter from Dr Lim dated 21 September 2021.

2. In her statement, the applicant stated that:

   a.     Fiji is an island nation with less than a million people in population and to make it into an Australian university a person has to have acquired certain qualities and achievements. She stated the only reason she couldn’t flourish then was because she guesses she wasn’t as independent or courageous as her parents thought she was.

   b.     she cannot remember what happened in 2007 but she had little knowledge and guidance at that time which may have led to a period where she was unlawful (not deliberately). She remembers going to the Parramatta office and applying for a Remaining Relative visa in person and in her view her period of being unlawful was bad luck or simple human error but definitely not something done deliberately

   c.     in the last 18 years in Australia, she stated she has never been in trouble with the law.

   d.     she stated it is correct that she has been dependent on the parents since they came to Australia. Hence, the decision for the Department to decline the application. She wrote that that they were not going to stand there and lie just so the timelines matched about the support provided.

   e.     she applied for the child dependency visa because at that time it best suited her situation. Her level of dependency on her parents has changed as she has aged. She explained that things that she could do in 2010 without anyone’s assistance she couldn’t do in 2015 and the only thing that has stopped her from harming herself over this period are her parents. She wrote that she is not saying she wasn’t dependent on them in years before her child dependency application and that her parents have also written to the Department after 2015 explaining to the Department how worried they are about her condition and how willing they are to always look after her and to give me the sense of belonging. She explained that she used to be able to do her own washing and a bit of cooking in 2010 but now there are days, she has to ask what day it is as my mind is consistently in fear of what the future holds for her.

   f.     she has blood pressure issues (consistent nose bleeds), mental health issues, confusion, concentration issues, and the decreasing ability to perform tasks independently since 2015 are the main reasons behind the child residency application.

   g.     almost two decades have passed and she cannot replicate all situations and timelines of specific events because at the age of 42 with so many medical / mental health conditions it now is beyond her.

3. The submission of the applicant’s representative referred to the concerns raised by the Tribunal regarding the timing of when the applicant became dependent on her parents and stated that the applicant “has become the dependent child of her parents since last applying for the Medical Treatment visa on 8 September 2015 as she has become incapacitated to work as a result of her Chronic Adjustment Disorder with mixed anxiety and depressed mood which have resulted in partial loss of her bodily and mental functions.

4. Referring to the definition of ‘dependent child’ under regulation 1.03 of the Migration Regulations 1994, it was submitted that the applicant has been dependent on her parents for financial, physical, and emotional support due to her health conditions prior to 2015, however, since applying for the Medical Treatment visa on 8 September 2015, Ms. Naidu’s condition has significantly deteriorated, and she has become incapacitated to work. As such, Ms. Naidu has become the dependent child of her parents as she meets regulation 1.03(b)(ii) of the Migration Regulation 1994 due to her incapacitation to work due to the total or partial loss of her bodily or mental functions.

5. Referring to Regulation 1.12, it was submitted that Regulation 1.12(2) provides the general rule that informs the definition of ‘dependent’ in 1.03 and 1.05A. Ms. Naidu is a member of the family unit of her father, Mr. Gopal Naidu and as is over the age of 23, therefore as per regulation 1.12(2)(b)(iii), the level of dependency she needs to establish is that she is incapacitated for work due to the total or partial loss of her bodily or mental functions as stated in regulation 1.05A(1)(b).

6. In relation to Regulation 1.05A which provides the definition for ‘dependent’, it was submitted that the applicant has become incapacitated for work due to the total or partial loss of her bodily or mental functions and due to this incapacitation, she has become the dependent child of her parents since applying for the Medical Treatment on 8 September 2015.

7. The submission states that it is irrelevant that the applicant was financially dependent on her parents prior to applying for the Medical Treatment visa as the regulation she needs to meet is Regulation 1.03(b)(ii) which clearly states that a person becomes a dependent child if they are incapacitated to work due to total or partial loss of bodily function. In the applicant’s case, she has become the dependent child of her parents since applying for the Medical Treatment visa on 8 September 2015 as her physical and mental health conditions have deteriorated such that, she has become incapacitated to work due to total or partial loss of her bodily function.

8. The submission referred to the letter from Dr. Hardy Lim dated 21 September 2021 as evidence of her deteriorating physical and mental health conditions since 2015 and her incapacity to work:

   “I hereby certify that Ms Jyoti Naidu of [Address] was attended by me on Tuesday, 21 September 2021.

   She has been my patient since 2006.

   This is to follow up my last letter dated 30/08/2018. Since then she has been mentally and physically worse. She was seen by Psychologist who confirmed that she has suffered from Chronic Adjustment Disorder with severe mixed Anxiety and Depression according to DSM-V. She also undergone Psychometric testing and her Anxiety, depression and Stress symptoms are in the severe range.

   Physically this has affected her badly in term of her skin condition and hypertension. Emotionally she has not been coping very well especially for not being able to get any support from Medicare and this in turn affected her financial situation. Because of the Hypertension and mental problem she is incapacitated to work.

   Her conditions have deteriorated since 2015.

   She has been in Australia for the last 18 years and therefore serious consideration would be greatly appreciated with regards to her application of permanent residency”.

1. The submission states the letter from Dr. Hardy provides clear evidence that Ms. Naidu’s condition has deteriorated since 2015 and as a result of her health conditions, particularly her hypertension and mental health issues she has become incapacitated to work and on that basis, has become the dependent child of her parents since applying for the Medical Treatment visa on 8 September 2015 as per regulation 1.03(b)(ii) as she has become incapacitated to work due to the deterioration of her physical and mental health conditions.

Issues relate+d to a health examination

1. On 1 October 2021 the Tribunal wrote to the applicant inviting her to undertake a health examination and to provide information to the Tribunal.

2. Following some delays in the applicant obtaining an appointment for the health examination, the Tribunal received the Health Waiver Information on 30 March 2022. The Health Waiver Information dated 7 March 2022 provided from BUPA Medical Visa Services states the applicant was assessed on 7 March 2022:

   “ as not meeting the health requirement. The information below is provided, in conjunction with the Form 884 “Does Not Meet” opinion, for the purpose of considering a waiver of paragraph 4007(1)(c) in Schedule 4 to the Migration Regulations.

Public Health / Danger to the Community

In my opinion, on the basis of the available medical evidence, the applicant meets the requirements of paragraphs 4007(1)(a) and 4007(1)(b) in Schedule 4 to the Migration Regulations.

That is, I am satisfied that the applicant is:          

(a)    free from tuberculosis; and

(b)    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.

Likely cost to the Australian Community

It states that in the opinion of the Medical Officer of the Commonwealth, the estimated costs to the Australian community in the 884 something odd here is likely to be:

Commonwealth disability services	$1,735,240
Mental Health services	$28,740
Total Cost	$1,763,980

Likely Prejudice to Access

It states that in the opinion of the Medical Officer of the Commonwealth granting a visa to the above applicant for the assessed period of stay would not be likely to prejudice the access of an Australian citizen or permanent resident to health care or unity services.

1. The accompanying Form: 884: Opinion of a Medical Officer of the Commonwealth also dated 7 March 2022 provides the following assessment:

   “The applicant has been assessed against Public Interest Criterion (PIC) 4007 [see attached extract] for the period of a permanent stay in Australia.

   The applicant does not satisfy sub-subparagraph PIC 4007(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.

   The applicant is a 42-year-old person with:

   - Severe recurrent depressive disorder

   Form and severity of the applicant's condition: the applicant has a severe chronic adjustment disorder with mixed anxiety and depressed mood. The applicant requires assistance with most activities of daily living and has ongoing severe symptoms of depression despite treatment. The applicant requires ongoing treatment for her depression, significant assistance with activities of daily living and is likely to require long-term disability support services. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term support including but not limited to mental health services and disability support services. This condition is likely to be Permanent.

   I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

   These services would be likely to include:

   Mental Health services Commonwealth disability services

   Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.

   In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the visa medical assessment dated 2/3/22 and report from psychologist Karolin Issavi (undated)”.

Arrangements for a further hearing

1. On 12 May 2022 the Tribunal wrote to the applicant explaining that the Tribunal had scheduled an in-person hearing on 4 May 2022. The hearing was subsequently re-scheduled to a video hearing on 12 May 2022 as a result of health concerns raised by her and on 11 May 2022, she again sought a further postponement which was also granted.

2. The letter explained that in conducting the review, the Tribunal is required by the Migration Act 1958 to invite her to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

3. The letter explained that it had been the Tribunal’s intention to put to her information in particular terms as required under the Migration Act at the hearing so it could explain the issues to you in person. However, in the light of her requests for the scheduled hearing to be postponed and in view of her preference for a video hearing and in view of the fact the Presiding Member took an extended period of leave from early June, the Presiding Member had decided to firstly set out the potentially adverse information in writing and to provide her with an opportunity to comment on or respond to the information at hearing. She was also provided with an opportunity to comment on or respond to the information in writing.

4. The letter outlined the information which would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review is set out the information contained in the BUPA assessment referred to in previous paragraphs. She was provided until 26 May 2022 to respond.

5. The applicant provided her response dated 26 May 2022. The covering submission from her migration representative refers to the fact that in the opinion of the Medical Officer of the Commonwealth dated 7 March 2022 the applicant does not meet the health requirement specified in PIC 4007. It was submitted to the Tribunal that the applicant satisfies the health requirement as the treatment she requires costs below the significant policy threshold of $40,000.

6. The submission states that alternatively if the Tribunal does not accept that the applicant meets PIC 4007, it was submitted that a waiver should be exercised in accordance with PIC 4007(2) as the granting of the applicant’s Child visa will be unlikely to result in an undue cost to the Australian community and undue prejudice to access to health care or community services of an Australian citizen. It states, there are compelling and compassionate circumstances which warrant the waiver of PIC4007 including the hardship faced by Australian citizens, the financial support available from the applicant’s family including savings, assets and private health insurance and the best interests of the applicant’s nine-year-old nephew.

7. The submission refers to the applicant suffering from Chronic Adjustment Disorder with mixed Anxiety and Depression and that she has been treated by psychologist, Karolin Issavi from Rehab Solutions Australia since 2 April 2019 and referred to the letter from her dated 25 May 2022 quoting:

   “I have been consulting Ms Jyoti Naidu for the treatment of anxiety and depression since 2/04/2019.

   Treatment intervention has focussed on encouraging Ms Naidu to access help within her support network, mostly her parents whom she is fully dependant on her (sic) for emotional, psychological and financial support. Therapeutic intervention has had a holistic approach to improving Ms Naidu’s well-being by encouraging her to access supervised gym sessions, hydrotherapy and paying particular attention to her diet and lifestyle in general.

   Ms Naidu continues to experience severe stress and anxiety and as a result suffers from elevated heart rate. She continues to be medicated for hypertension.

   Treatment Funding

   Sessions completed with Ms Naidu are at the cost of $120 per session, which are totally dependent on the severity of her anxiety and depression symptoms. Visitations may range from 6 to 8 sessions per year. Ms Naidu has been paying for her sessions privately and the health insurance also covers the treatments as outlined below.

   Ms Naidu has health cover with Bupa Private Health Insurance - Bronze plus hospital covering:

   Brain and nervous system, bone, joint and muscles

   Diabetes management

   Sleep studies and pain management.

   She also has lifestyle extra covering:

   Physiotherapy, chiropractic and osteopathy, remedial massage and home nursing up to the cost of $20,000.

   Recommendations

   The provision of psychological services is managed by Ms Naidu’s family. I therefore recommend that her psychological health care needs will not be a cost to the Australian community, and she does not stand to prejudice an Australian Citizen’s access to these services”.

8. The submission refers to the Department’s policy guidance in the PAM3 in relation to Schedule 4 – 4005 and 4007 and that based on the advice of the applicant’s psychologist the cost per session is $120 depending on the severity of the applicant’s anxiety and depression symptoms, with 6 – 8 sessions per year. The submission states that as the applicant is currently having up to eight sessions with the psychologist a year, the total cost of those sessions for a five-year period in relation to a permanent visa is $4800 which is substantially below the significant cost policy threshold of $40,000. It is therefore evident that the provision of health care to the applicant will not be a significant cost to the Australian community. In relation to ‘lifelong’ costs, it was submitted that it is impossible to calculate the cost of her treatment beyond the five-year period as evidence provided to the Tribunal indicates that her symptoms have been further exacerbated by her fear of being separated from her parents and brother who are citizens of Australia and the uncertainty of her residency status.

9. The Tribunal was asked to take note of the objective evidence from the applicant’s psychologist explaining that the cost of the applicant’s treatment is dependent on the severity of her anxiety and depression symptoms and is paid by her family and through her private health insurance (Bronze Plus hospital with the lifestyle extras that covers additional treatment such as physiotherapy, chiropractic, osteopathy and remedial massage up to the cost of $20,000.) A copy of the applicant’s BUPA health insurance policy and extras cover was provided. In relation to financial support the submission quotes her parents letter of 15 May 2022 and that of her brother’s letter of 16 May 2022.

10. The submission also states that in view of the fact that the applicant has between 6 -8 sessions with her psychologist per year and her psychologist is of the view that psychological health care will not be a significant cost to the Australian community and does not prejudice an Australian citizen’s access to these services.

11. The submission again refers to PAM guidance in relation to Schedule 4 - 4005-4007 and in relation to the existence of compelling and compassionate circumstances that warrant a waiver of PIC 4007 for the applicant. It states that she has significant close family links to Australia that will be fractured if she is unable to live in Australia with her Australian citizen parents, brother, sister-in-law and nephew and quotes the applicant’s statement of 15 May 2022.

12. The submission argues it is in the best interests of the applicant’s nine-year nephew that she remains in Australia and continues to have an active presence in his life and refers to Article 3(1) of the Convention on the Rights of the Child and quotes from an article from the Australian Institute of Health and Welfare and cites a number of judicial decisions.

13. The applicant also provided a statement dated 15 May 2022. She states the report from BUPA highlights the same claims that she made in the past. She cites her high blood pressure which despite medication restricts movement in her neck and spine. She refers to her parents and brothers’ ability to support her and the proximity of their homes to each other. She writes that her parents deposit money into her account so she can pay for her own medical expenses and that she has private health insurance. The applicant refers to her relationship with her nephew.

14. Information in the Psychological Support Letter provided with the submission has already been referred to.

15. The applicant’s parents in a letter dated 15 May 2022 referred to their financial situation outlining their assets and savings and state that they are equipped to look after the applicant. They state that she needs them to look after her and that she will not be a burden on Australia’s health system.

16. The applicant’s brother wrote letters of support dated 16, 19 and 22 May 2022. He writes that the applicant is one of the strongest women he knows and that he is prepared to support her financially and refers to his assets. The letter also states that the family is very close and that he may suffer depression if her visa is not granted. His correspondence also refers to the close relationship between his son and the applicant.

17. Also provided to the Tribunal was evidence of the applicant’s parents’ superannuation and bank accounts, council rates notice and various utility statements.

18. Dr Lim’s letter of 18 May 2022 states that the applicant suffers from hypertension and that it is currently treated with medication. He states that because she does not have access to Medicare, all her medical consultations and medications are covered by the applicant.

Oral evidence provided at second hearing

1. At the hearing the Tribunal referred to the applicant’s agreement to undertake a medical examination following the first hearing and the subsequent report provided by the Commonwealth Medical Officer. The Tribunal explained that because the information is potentially adverse given it states that she does not meet Public Interest Criterion 4007 the Tribunal has provided it to her in writing to comment on or respond to the information. The Tribunal also explained it is also obliged to provide an opportunity at hearing for her to also comment on or respond to the information.

2. The applicant told the Tribunal that she has nothing to add and that everything important has been put in writing.

3. The applicant stated that as a child her parents have always been around. She stated that although her parents have supported her since 2009, she did not have to be looked after but now she is reliant on them. She stated that her level of dependency has changed over the years. She stated that from 2009 her parents supported her financially but now she needs them around and is unable to manage without them.

4. The applicant confirmed the Tribunal’s understanding that after she finished studying, she has never worked. She stated that initially when she came to Australia she lived with her brother and then her parents. She stated that she was never asked to work but she would have loved to be able to work but had no work /no study conditions on her visa so she could not do so.

Oral evidence provided at third hearing

1. A further hearing was set down for 15 September 2022. The Tribunal referred to its correspondence sent to her in June 2022 when she was invited to the hearing that is required to give her a further opportunity to address the evidence put forward in relation to her meeting the requirements of cl. 802.212. The Tribunal explained that specifically it wished to discuss the evidence submitted in relation to claims that at the time of application she was incapacitated for work due to the total or partial loss of her bodily or mental functions.

2. The Tribunal explained to the applicant that as this is a time of application requirement, it has reviewed the material provided by her to the Department at the time she applied for the visa. The Tribunal also explained that it is has concerns that the information submitted does not appear to be sufficient to enable her to satisfy the requirement but that it was providing her with a further opportunity to make further submissions.

3. Neither the applicant nor her migration representative had access to the original application, so the Tribunal read out the medical certificate that was provided in support of her 5 September 2018 application. The certificate is dated 30 August 2018 and states that:

   “Ms Naidu was attended by her GP on 30 August 2018.

   She is suffering from a skin caused by anxiety and depression which causes her to scratch all the time.

   She also has a problem with hypertension and these mental and physical conditions mean that Ms Naidu is incapacitated for work”.

4. The Tribunal explained it had a number of concerns in relation to this evidence. Firstly, it is not supported by any other information. Secondly, the medical certificate does not indicate if the applicant was at that time partially or totally incapacitated. Thirdly, it does not indicate whether any treatment or medication would be able to address or partially address any of the conditions referred to. Fourthly, the medical certificate provided by the applicant’s GP does not indicate why her hypertension cannot be managed or her anxiety and depression would not be responsive to any treatment. In addition, the medical certificate does not indicate whether the applicant is incapacitated for all or any work. The Tribunal explained to the applicant that for example, given her training as an accountant, it would have been helpful to know if she would have been incapacitated to undertake some work as a bookkeeper which may in certain circumstances be less stressful.

5. The Tribunal explained to the applicant the medical certificate was so broad and generic that it was only able to give it limited weight in relation to whether or not she met the relevant provision.

6. The Tribunal outlined to the applicant that it has also had regard to the fact that the Department wrote to her providing her with an opportunity to submit further information to the Department. In responding on 1 April 2019, she provided a further letter from her GP, Dr Lim. The letter dated 29 March 2019 indicates that her medical condition had worsened since 2016 and that he sees a real need for her to have some psychological counselling. He refers to her having “lots of anxiety and depression which in turn has caused her to develop compulsive eating and scratching. This gets worse when she is very anxious. She is not capable of living a normal independent life, i.e., incapable of working she needs all the support from her family. The uncertainty about application for permanent residency does not help”.

7. The Tribunal explained to the applicant that again Dr Lim’s letter does not adequately substantiate that at the time of application she was incapacitated for work due to the total or partial loss of her bodily or mental functions’. The Tribunal has the same concerns with this letter as it does with Dr Lim’s 28 August 2018 letter.

8. The Tribunal noted that in addition to Dr Lim’s letter she also provided a report from Rehab Solutions. The Tribunal referred to the fact that the report was dated 2 April 2019 and states that an initial psychological assessment was undertaken on the same date. The Tribunal expressed its concern to the applicant that this evidence was well after her application of 5 September 2018 and noted that nothing in that report is supportive of claims made that she was incapacitated for work due to the total or partial loss of her bodily or mental functions.

9. In relation to a waiver of the PIC 4007 health requirement the Tribunal advised the applicant that it had considered her submissions. It noted that in order for such a waiver to be exercised she must meet all the requirements for the grant of the visa. In view of the concerns that the Tribunal had expressed to her, it would be difficult to see how she could meet the requirements for the waiver based on the information and evidence put forward by her in support to her claim so far that at the time of application she was incapacitated for work due to the total or partial loss of her bodily or mental functions.

(ii)      who has not turned 18; and

(iii)     in relation to whom the parent has:

(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

1.05A Dependent

1. Subject to subregulation (2), a person (the first person) is dependent on another person if:

   (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

   (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

   (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

   …