ROCHA BRAGA (Migration)

ROCHA BRAGA (Migration) [2022] AATA 2961 (21 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MARCELO ROCHA BRAGA
REPRESENTATIVE:  Mr Filippo Pellegrino (MARN: 1275758)
CASE NUMBER:  2016023
HOME AFFAIRS REFERENCE(S):          BCC2020/2394083
MEMBER:Jane Marquard
DATE:21 July 2022
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 21 July 2022 at 10:16am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – lengthy stay in Australia – period of unlawful residence – application for permanent visa – no further medical treatment sought – partner visa refusal notification not received – request for Ministerial Intervention – compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 57, 65, 351
Migration Regulations 1994, Schedule 2, cls 602.211, 602.215
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 12 October 2020 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant was born in 1974 and is a citizen of Brazil.
The applicant arrived in Australia on 24 October 2008 on a Tourist (TR 676) visa. He departed the country when his visa expired on 24 January 2009. He returned to Australia on 19 March 2009 on a Student (Temporary) (TU 572) visa. He was granted a number of Student Further Stay (TU 572) visas after this, the last of which ceased on 27 August 2014. He was granted a Skilled (Graduate Work Stream) (onshore) VC 485 visa on 5 February 2015 which ceased on 5 August 2016. He was then granted a Temporary Partner (UK 820) visa on 7 June 2017. His Partner 801 visa was refused on 13 January 2020 following a marriage breakdown. The bridging visa associated with that application ceased on 17 February 2020. The applicant remained in Australia unlawfully until 31 August 2020, for a total period of 186 days.
The applicant applied for this Medical Treatment (Visitor) (Class UB) visa on 30 September 2020. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). A Subclass 602 visa is for persons seeking to visit or remain in Australia for medical treatment or related purposes. 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).
The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met cl 602.215 of Schedule 2 to the Regulations which requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The applicant appeared before the Tribunal on 11 July 2022 to give evidence and present arguments. The applicant was represented by his representative Filippo Pellegrino from Modern Migration Australia. The applicant also provided written submissions to the Tribunal. This evidence, along with the evidence provided to the Department of Home Affairs (the Department), is referred to in the findings below.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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. The Department was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, which is one of the requirements for the visa.
A threshold question is whether the applicant meets cl 602.211 of Schedule 2 to the Regulations (see Attachment A). This clause requires that the applicant seeks to visit or remain in Australia temporarily for the purposes of medical treatment or a related purpose.
At the Tribunal hearing the applicant conceded that he is no longer seeking to visit or remain in Australia temporarily for the purpose of medical treatment or a related purpose.
He said that when he applied for this visa he was seeking treatment for his depression, but he is now feeling much better and is no longer seeking to remain in Australia for treatment. His self-esteem and confidence are back. He did see the psychologist for a few sessions and was then unable to afford it. He no longer feels that he requires treatment. The applicant’s representative confirmed that he acknowledged that the Tribunal could not find in favour of the applicant as he was not seeking treatment.
The Tribunal is satisfied that the applicant does not meet cl 602.211 of Schedule 2 to the Regulations. It is not necessary therefore to consider the other criteria for the visa.
As cl 602.211 of Schedule 2 to the Regulations is not met, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.
The Tribunal therefore affirms the decision under review.
REQUEST FOR REFERRAL FOR MINISTERIAL INTERVENTION
At the Tribunal hearing the representative confirmed that the applicant would be applying to the Department for ministerial intervention pursuant to s 351(1) of the Act. He also requested that the Tribunal refer the matter to the Department for consideration for ministerial intervention.
At the Tribunal hearing the applicant confirmed that he comes from Rio de Janeiro. He has been living in Western Australia for 15 years. He has no family in Australia. His parents and five siblings are living in Brazil or other countries.
The representative submitted that there are compelling circumstances for the referral. It was submitted that the applicant found himself in ‘this complex migration situation’ through the failure of his long-term relationship, as summarised in Dr Roth’s report. It was submitted that the applicant was raised in a culture of toxic masculinity or machismo. This led to him being unable to seek appropriate help during the later period of his failed relationship or to accept that he was a victim of domestic violence. It was submitted that to do so would have required the applicant to ignore his cultural upbringing and challenge his foundations of manhood. It was submitted that: ‘a good summary of the paradox of men suffering under the constraints of machismo can be found In particular the manifestation of phycological illness when men under the illusion of total masculine control as confronted by their own fallibility and the reality of their situation.’ The representative submitted that when issued with a s 57 notice by the Department he chose to respond to it without the help of an agent to his detriment.
In his application the applicant said that he sought treatment from 30 September 2020 to 30 March 2021 for ‘major depression – recurrent episode’. He said that the estimated costs of treatment was $300. The name of the medical facility was provided as Brighton Beach Medical Centre. A Form 1507, ‘Evidence of intended medical treatment’ was provided stating that he would be treated by Mr Roth, psychologist for ‘major depression – recurrent episode’
The applicant provided a Statutory Declaration dated 13 August 2018 from a registered psychologist, Heinrich Roth. The applicant had four consultations with Mr Roth. The report was provided in support of his application for a Subclass 801 visa, despite the breakdown of his relationship with his partner, Ms Vanirsen. He said that the applicant was born in Rio de Janeiro. He had a happy childhood then moved to Australia when Brazil was struggling economically. He completed a Civil Engineering course at TAFE over three years and met his wife there. After one year they moved in together. He reported that the applicant was the owner of a home improvement firm which had been struggling financially. He was married to Ms Vanirsen for two years however they had a relationship for eight years. She left her previous husband for the applicant and had three children from her prior marriage. These children lived with the applicant and Ms Vanirsen. The applicant described them as his family. The relationship became stressed after the business was struggling and his tendency to store building materials in the yard. There was also a difference in opinion with his mother-in-law who he said drove a wedge between the couple. They had married without her knowledge. His wife experienced depression and moodiness. According to the psychologist, she became ‘verbally, mentally and physically abusive’ towards the applicant. She often threatened to withdraw her sponsorship of his Permanent Residency. He left the home on 8 July 2018. Her parents also withdrew their sponsorship of the visa informing the Department that the couple were separating.
The applicant also provided a report of the psychologist dated 16 June 2018 with the same content. The applicant said that after his visa was refused he saw Mr Roth for a few sessions then stopped as he could not afford it. The psychologist stated that the applicant reported symptoms to satisfy the criteria for major depressive disorder, severe, recurrent episode with severe anxious distress. He said that the DASS-21 was indicative of depression, anxiety and stress. It was stated that the applicant would require ‘psychotherapeutic support for the foreseeable future.’ It was expected that he would make a full recovery.
The applicant also provided an audio copy of the applicant’s mother-in-law being ‘severely abusive’ towards the applicant. This recording included the mother-in-law swearing profusely at the applicant and insulting him and accusing him or using her daughter’s power and water without contributing money. She also accused him of eating a child’s toast.
At the Tribunal hearing the applicant was asked for more information about the basis for seeking ministerial intervention. He said that there were compelling reasons due to the breakdown of his relationship. Mr Pellegrini said that they would be seeking ministerial intervention on the basis of compelling circumstances, and in particular domestic abuse which was not properly assessed by the Department. He said that the applicant is of overall good character. The applicant submitted that the Department did not evaluate his partner according to the documents provided demonstrating domestic abuse. He claimed that his former wife and her mother committed domestic violence on him which comprised psychological violence and ‘a bit of’ physical violence. The Department referred him to a psychologist, and he had two sessions with her. Then she asked him if he was happy or if he wanted more time to talk. He said that he needed more time and was given another hour. In her report the psychologist found that there was no domestic violence inflicted on him, but rather there had been a lack of communication between him and his partner. The applicant said that he believes that the conclusion reached by the psychologist is incorrect. After reading up on the subject, he believes that his former partner was a covert narcissist. He did not tell the psychologist this. He did not have a lawyer at the time.
He said that he did not deliberately overstay his bridging visa. He explained that the notification about the refusal of his partner visa was sent by his representative to a previous Hotmail email address that he had used when he first arrived in Australia. He said that he thought that his former representative would have tried to get hold of him by telephone to notify him of the outcome. He said that he was living unlawfully in the country but did not know this. He also missed the deadline for submitting an application for review of the decision to refuse his partner visa. It was only once he called the representative in August that he found out about the refusal and then it was too late. The Tribunal asked the applicant if in fact it was his responsibility to remain lawful and to check that his visa was current. He said that he would never allow himself to become unlawful. He kept everything to himself about his personal life, and he was not talking to people, and the representative did not correspond with him correctly or make efforts to contact him.
The applicant said that he tries to be positive to friends and people around him. He said that he has been compliant in Australia with laws and visa conditions and has had good relationships with his neighbours. He said that he had a few bad years after his relationship but he is energised and happy again and has been pursuing his goals. The applicant said that he is in a new relationship and is thinking of committing to that relationship. His new partner, Carla, appeared at the hearing, and confirmed this was the case. He said that he is working on a project building a bridge in Perth. He said that he works long hours. He said that he would ‘rather build a bridge than walls’. He said that it will be the most beautiful bridge in Perth. He used to have a small business renovating houses with his own clients, but then `his relationship broke down and he had a hiatus in work. He said that he has been in Australia for the ‘best part of his life’. He studied Civil Engineering and helped raise three kids. He said that he was a ‘father’ to them as their biological father disappeared for a while.
Carla said that she has known the applicant for five months and they are in love. She said that he is a good person and is always positive and responsible. She said that her friends and family love him and her daughter has met him. She said that she can see a person of good character. She said that he is a good son and is close to his family and he would be a good father.
The applicant submitted that he is applying for ministerial intervention as he would like his partner visa decision re-assessed. If he had been informed of the refusal of the partner application by his former representative, he would have applied for review.
Under s 351(1) of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest. These powers can only be exercised by the Minister personally. The Minister has issued Guidelines explaining the circumstances in which he or she may wish to exercise the discretion and informing officers of the Department when to refer a case.[1]
[1] Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016)
The Minister’s guidelines indicate that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstance(s).[2] The Minister’s guidelines list circumstances which may be unique or exceptional. On the evidence before it, the Tribunal is not satisfied that there are unique and exceptional circumstances, however this is a matter for the Minister, and further evidence of these circumstances may be provided to the Department.
[2] Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016)
The Tribunal notes that pursuant to para 3 of the Minister’s Guidelines, the Minister will view a case referred to him unfavourably if a person has been an unlawful non-citizen. If the applicant does refer the matter to the Minister pursuant to s 351(1) of the Act, the Tribunal notes for the purpose of that referral that the Tribunal is satisfied that the applicant’s period of unlawfulness was not deliberate. The applicant became aware in August 2020 that his last substantive visa had been refused in January 2020. The application for a bridging visa E was lodged on 27/08/20 once he became aware. His previous migration agent had emailed the refusal notice to the applicant, but he had ceased using that email address and was no longer regularly monitoring it. Once the applicant became aware and following a bout of ‘debilitating period of depression’, he sought advice. On 27 August 2020 a Bridging Visa E application was lodged and was subsequently granted. It was submitted, and the Tribunal accepts, that his actions indicate a person of good character who sought to comply when he became aware of his status. The Tribunal accepts that he is a hard-working individual who has complied with laws and wishes to contribute to the community. The Tribunal has considerable sympathy for the applicant as he did not intend to become unlawful and missed the date to apply for review of the decision of the Department to refuse his partner visa, as his former agent had used an old email address.
decision
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Jane Marquard
Member

ATTACHMENT A
Migration Regulations 1994
Schedule 2
602.211
The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
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).

[2022] AATA 2961

21 July 2022

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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