Singh (Migration)

[2018] AATA 4310

Singh (Migration) [2018] AATA 4310 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh

CASE NUMBER:  1726015

DIBP REFERENCE(S):  BCC2017/3415540

MEMBER:Linda Holub

DATE:17 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2018 at 11:43am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical treatment) – remain in Australia temporarily – mental illness – applied numerous visas – financial support by family – mother’s medical condition – applicant’s mental health condition – state of health care in home country – number of treatments attended – ownership of land – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 October 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is 31 years of age and a citizen of India, applied for the visa on 18 September 2017. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes

3. The delegate refused to grant the applicant the visa because the delegate was of the view the applicant is attempting to obtain a further Medical Treatment visa to remain in Australia to maintain ongoing residence in Australia, to continue working in Australia and/or to access services in Australia.

4. The applicant appeared before the Tribunal on 11 September to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

Is the applicant unfit to depart Australia?

1. 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:

   a.is in Australia

   b.has turned 50

   c.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

   d.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.

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

3. The Tribunal discussed with the applicant the provision of clause 602.212.  The records of the Department indicate that the applicant was in Australia at the time of application on 18 September 2017.  Accordingly, the Tribunal finds that he satisfies the requirements of cl.602.212(6)(a).  The evidence before the Tribunal indicates that he was born in January 1987 and is therefore 31 years of age.  This was confirmed by the applicant.  Accordingly, the Tribunal finds that he has not turned 50 years of age and does not satisfy the requirements of cl.602.212(6)(b).  As he not satisfy the requirements of cl.602.212(6)(b), he is unable to meet the requirements of cl.602.212(6) in its entirety.

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

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

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

11) 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).

Background

12) The applicant first came to Australia in July 2009 on a Student visa.  When lodging this application, he sought a Medical Treatment visa for the period 18 September 2017 until 10 October 2019 for depression.  A medical certificate from his GP dated 16 September 2017 stated that the applicant was suffering from anxiety and depression and is under the GPs treatment.  It states that he will receive counselling and medications and will require ongoing GP review.  The estimated cost of his treatment was expected to be $8000.  In a Statutory Declaration dated 18 September 2017 the applicant also refers to his depression.  A submission provided at the time of application refers to the applicant suffering from depression and anxiety and that he was seeking a visa for a period of 24 months in order to continue treatment with his psychologist.

13) At review, the applicant provided a copy of a letter from a Registered Psychologist dated 1 September 2018.  It states that an initial assessment was undertaken on 11 November 2017 and he has undertaken four additional sessions.  It states that the applicant has symptoms consistent with Adjustment Disorder relating to his mother being severely ill.  It refers to her have kidney issues and that she is currently undergoing dialysis and that the applicant is experiencing difficulty coping as a result.  It states that a Cognitive Behavioural Therapy approach is being taken to develop appropriate coping strategies and that the applicant requires further treatment to work through his mental health condition,

Credibility concerns

14) The Tribunal did not consider the applicant to be a credible witness.  The Tribunal was concerned with the inconsistencies between the written and oral evidence of the applicant in respect of his treatment by his psychologist and in relation to his mother’s treatment for a claimed kidney condition.

Evidence at hearing

15) The Department’s Decision Record outlines the applicant’s migration history.  He has not left Australia since coming here on 2 July 2009.  In summary while onshore he has at various times applied for a number of different visa types, including a Graduate visa (subclass 485), a [temporary] visa, a previous application for a Medical Treatment visa and a Visitor visa and has been unsuccessful on each occasion. At various stages the applicant sought review of the departmental refusals, and as these were unsuccessful lodged appeals in the Federal Court.  The courts found in the Minister’s favour.  The applicant has also sought Ministerial Intervention, the outcome of which was negative.  The Decision Record notes that the applicant has not held a substantive visa since 15 March 2011 and that he has been the holder of numerous Bridging visas WE- 050 since 26 February 2013, most of which were granted on the grounds and expectation that the applicant would depart Australia. The applicant remained in Australia, at times unlawfully.

16) At hearing the applicant confirmed the migration history as outlined in the Decision record.  He explained that when he first came to Australia on a student visa in July 2009 he studied at the Royal International College in Perth where he undertook a Certificate IV in Management.  When the college closed down he left Western Australia and came to Sydney and was admitted to a new college which also later closed. He talked about problems he had with a migration agent who lodged a fake Trades Recognition Australia (TRA) result.  The agent was subsequently found to be fraudulent.  As he went through the various visa application processes he stated that he sometimes worked as a forklift driver.  When asked when he was last employed, he initially mumbled in 2015 and then said that he was unable to remember.  

17) The applicant claimed that his mother provides him money from time to time.  His mother has a farm where she grows wheat, rice, sugar cane, and vegetables. He stated that she gives rupees to friends when they visit India and when they return to Australia they give him Australian dollars. When asked how much money his mother sends him, he responded that it is not a consistent amount.  From time to time he asks for money.  His brother also gives supports him financially and pays his rent.  His brother is a fork lift driver.

18) In written evidence to the Tribunal, the applicant referred to his mother’s having kidney issues, that she is going through dialysis and that the has had difficulty coping as a result.  The Tribunal asked about his mother’s health.  The applicant stated that she suffers from high blood pressure and has a kidney infection.  In relation to how her health conditions are managed the applicant stated that her high blood pressure is managed with a tablet.  The applicant stated that the doctors are trying to control her kidney infection with mediation and if they are not able to, she may need to have dialysis.  He stated that the treatment is only available in the city which is about 400km from where she lives.

19) The Tribunal asked the applicant why the submission of 1 September 2018 from his psychologist provided to the Tribunal states that his mother is going through dialysis.  He provided a convoluted answer that he meant she has having dialysis.   The Tribunal repeated his previous response which clearly stated that “the doctors were currently trying to manage his mother’s kidney infection with medication but if that was unsuccessful she would have to travel 400km to the city for dialysis”.  He stated that she is having dialysis.  When asked why he why he did not say that initially, he said the main thing is that she is sick.

20) The Tribunal explained to the applicant that inconsistent evidence is of concern because raises doubts about his credibility.  He responded that he has reports on his phone showing his mother results and information her severe kidney infection.  The Tribunal explained that viewing the reports would not explain why he provided inconsistent evidence to the Tribunal.  He responded that he told his psychologist that his mother is going through dialysis. The Tribunal put to him that he told the Tribunal different information, which was that, his mother is managing her kidney condition with medication. He responded that he recognises that he gave inconsistent evidence but the reality is that his mother is sick and having treatment.

21) The Tribunal asked the applicant why he had not returned to India.  He stated that he got sick.  The Tribunal asked him when he was diagnosed with anxiety and depression.   He responded that he cannot remember.  He stated that he sees his GP, a psychologist and has been prescribed medication.  The Tribunal has had regard to the additional written submissions provided by the applicant to the Tribunal including copies of his prescriptions, pathology results and other medical reports.

22) The Tribunal asked the applicant how many times he had seen the psychologist noting that he sought a visa for the period18 September 2017 and 10 October 2019 and that almost a year of that period had elapsed.  He responded he sees the psychologist every month.  When asked to quantify how many times he had been, he stated that he had been “at least nine or ten times so far”.  The Tribunal asked him why the psychologist report that he had provided to the Tribunal, indicates that he had been seen by the psychologist on five occasions – on 11 November 2017 and then four additional sessions. The applicant responded that he had been prescribed some sessions.  He then asked the date of the report.  The Tribunal advised him that it was dated 1 September 2018.  The applicant then stated that he is very stressed.

23) The Tribunal has had regard to the applicant’s Statutory Declaration of 18 September 2017 provided to the Department which states that “he has consulted with his treating doctor and he believes that I will need to attend weekly appointments with my psychologist”[1].  The written evidence provide by the applicant’s psychologist attests to the fact that the applicant had a total of five sessions to 1 September 2018.  This raises further doubts about the applicant’s credibility given his claims that he required weekly counselling sessions.

[1] DIBP file, folio 9, page 2.

24) The Tribunal explained to the applicant that it must be satisfied that he genuinely intends to stay temporarily for the purpose for which his visa is granted and in doing so, must consider whether he has previously complied with the visa conditions of his previous visas.  The applicant has been unlawful for a few weeks in March-April 2011 and for a few days in February 2013.

25) The Tribunal noted that the applicant had continuously sought different options to remain in Australia but that at each attempt he had been refused.  The Tribunal explained to the applicant that his history suggests he is seeking to remain in Australia.  In responding, he stated that he cannot live here because he doesn’t have a permanent visa and therefore does not have a future or a career in Australia.  All he wants to do is get better and look after his mother.  He has land in India and he can busy by farming.  When asked why he would be unable to continue his medication and having occasional sessions with a psychologist in India, he responded that treatment is not good in India.  The Tribunal explained to him the state of health care in his home country is not a matter that the Tribunal must turn its mind too.  He stated that his only desire is feel better and then return to his country. If he gets better here he can take care of his mother.  He is uncertain as to who will look after him if he returns in his current condition. 

26) The applicant claimed that he owns land in India, which is very expensive, although he does not have access to the title documents.  The Tribunal told the applicant that it is prepared to accept he has land in India.

27) The applicant also referred to his age increasing and that his mother wants him to return and settle down as another reason he will return home after he obtains the medical care he needs for his depression and anxiety.

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

28) The Tribunal notes there is medical evidence that the applicant has been diagnosed with anxiety and depression.  However, the Tribunal is concerned the applicant provided a sworn statement about needing weekly counselling sessions but only had a total of five sessions to date and that at hearing grossly exaggerated the number of times he had seen a psychologist.  This raised doubts about the applicant’s credibility and therefore the Tribunal was not satisfied overall with the claims made.  The Tribunal also had credibility concerns in relation to the applicant as a result of the inconsistent oral and written evidence in respect of his mother’s treatment.

29) Departmental records indicate that on the whole the applicant has remained in Australia lawfully except for two short periods.  However, in relation as to whether or not he has substantially complied with the conditions of his last held substantive visa and subsequent bridging visas, in the light of the Tribunal’s credibility concerns the Tribunal cannot be satisfied he has and that he will comply with conditions 8101 (must not engage in work) and 8201 (must not engage in more than 3 months study or training) to which the Subclass 602 visa would be subject.  While the applicant provided a Statutory Declaration from his brother stating that his brother supports him financially, the Tribunal was not satisfied that this Statutory Declaration was conclusive of the claims made.  No evidence was submitted that his mother supports him and therefore, this has raised doubts about whether he has previously engaged in work in breach of his visa conditions.

30) The Tribunal is prepared to accept that the applicant’s mother suffers from high blood pressure and has a kidney infection; however the Tribunal is not satisfied that her condition provides an incentive for him to return to India.  If he was sufficiently concerned to be with her he could have arranged treatment for his own mental health condition and returned to India already, albeit the treatment may not of the same standard as is available in Australia, and perhaps, not as easily accessible.  Further, while the Tribunal was prepared to accept that the applicant has property in India and that his mother is keen for him to marry, the Tribunal is not convinced that these factors support claims that he will return to India after the visa ceases.  The ownership of land has not previously been an incentive for him to return and had made no claims that any arrangements had been made for him to marry.

31) In considering whether the applicant will comply with condition 8503 in the event it is imposed the Tribunal notes the many attempts the applicant has made to remain in Australia.  Therefore, in the light of credibility concerns, overall, the Tribunal is not satisfied the applicant plans to return to India on completion of his medical treatment for the reasons provided above. The Tribunal is not satisfied the applicant will comply with condition 8503.

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

33) The Tribunal has considered all other relevant matters.

34) The Tribunal finds the applicant does not have a genuine intention to only stay temporarily in Australia for the visa purpose. Accordingly, the Tribunal finds cl.602.215 is met.

35) 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

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

Linda Holub
Member

ATTACHMENT

Migration Regulations 1994

Schedule 2

602.212 (1)     The requirements in one of subclauses (2) to (8) are met.

Medical treatment

(2)All of the following requirements are met:

(a)     the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;

(b)    arrangements have been concluded to carry out the treatment;

(c)     if the treatment is an organ transplant:

(i)the donor of the relevant organ is accompanying the applicant to Australia; or

(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;

(d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

(e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

(f)     either:

(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

(ii)evidence is produced that the relevant government authority has approved the payment of those costs.

Organ donor

(3)All of the following requirements are met:

(a)     the applicant seeks to donate an organ for transplant in Australia;

(b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;

(c)     the applicant satisfies public interest criterion 4005;

(d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

(e)     either:

(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

(ii)evidence is produced that the relevant government authority has approved the payment of those costs.

Support person

(4)All of the following requirements are met:

(a)     the applicant seeks to give emotional and other support to an applicant in relation to whom:

(i)the requirements described in subclause (2) or (3) are met; or

(ii)the requirements described in subclause 675.212(2) or (3) are met; or

(iii)the requirements described in subclause 685.212(2) or (3) are met;

(b)    the person to whom the applicant is to provide support holds:

(i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or

(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or

(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;

(c)     the applicant satisfies public interest criterion 4005.

Western Province of Papua New Guinea

(5)All of the following requirements are met:

(a)     the applicant is a citizen of Papua New Guinea;

(b)    the applicant resides in the Western Province of Papua New Guinea;

(c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.

Unfit to depart

(6) All of the following requirements are met:

(a)     the applicant is in Australia;

(b)    the applicant has turned 50;

(c)     the applicant has applied for a permanent visa while in Australia;

(d)    the applicant appears to have met all the criteria for the grant of that visa, other than public  interest criteria related to health;

(e)     the applicant has been refused the visa;

(f)     the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

Financial hardship

(7)All of the following requirements are met:

(a)     one of the following applies:

(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;

(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;

(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;

(iv)the requirements described in subclause (5) are met in relation to the applicant;

(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;

(b)    the applicant is in Australia;

(c)     the applicant holds:

(i)a Subclass 602 visa; or

(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or

(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;

(d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;

(e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;

(f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;

(g)    the applicant has compelling personal reasons to work in Australia;

(h)    the applicant satisfies public interest criterion 4005.

Compelling personal reasons

(8)All of the following requirements are met:

(a)     one of the following applies:

(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;

(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;

(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;

(iv)the requirements described in subclause (5) are met in relation to the applicant;

(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;

(b)    the applicant is in Australia;

(c)     the applicant has compelling personal reasons for the grant of the visa;

(d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).