Sovatabua (Migration)

[2022] AATA 4851

Sovatabua (Migration) [2022] AATA 4851 (31 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Reape Sovatabua

REPRESENTATIVE:  Mrs Anne O'Donoghue

CASE NUMBER:  2208791

HOME AFFAIRS REFERENCE(S):          BCC2022/1727532

MEMBER:Linda Holub

DATE:31 October 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 31 October 2022 at 4:13pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – plans to remain in Australia – multiple permanent visa applications – limited medical evidence – health requirements – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 804.226

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 30 May 2022 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 May 2022. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because the delegate found that the applicant’s desire to remain in Australia and migration history outweighed their claims that they intend to remain temporarily in Australia to seek medical treatment and was not satisfied the applicant met the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations. On that basis, the delegate refused the application for a Medical Treatment visa.

4.    The review applicant was invited to appear before the Tribunal on 15 November 2022 to give evidence and present arguments. On 17 October 2022 the Tribunal received an email from the applicant’s migration representative stating that the applicant requests a decision on the papers as she seeks to take her matter to the minister. The submission of the same date from the applicant’s migration representative also states that a decision on the papers is requested. It states that the applicant waives their right to a hearing and requests the member support a request for ministerial intervention should the review application be unsuccessful. In a letter dated 14 October 2022 addressed to the Tribunal, the applicant wrote that she waves her right to a hearing and requests a decision be made on the papers and also that the Presiding Member makes a decision on the documents already submitted. In view of the clear request by the applicant and her representative, the Tribunal cancelled the hearing and proceeded to make this decision.

5.    The applicant was represented in relation to the review.

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

Backround

7.    The visa applicant is a 72-year-old national of Fiji. She first arrived in Australia on 31 May 1992 as the holder of a UA-670 visa which was valid until 31 July 1992. She departed and returned to Australia travelling on a series of bridging E visas on seven occasions, spending a total of 151 days offshore in the period from 2013 to 2020 The applicant has remained in Australia on a series of Bridging visas throughout this time. She last arrived in Australia 1 January 2020.

8.    Since arriving in Australia, the applicant has unsuccessfully applied for multiple permanent visas, including, [visa types], and most recently a permanent Combined Resolution of Status visa. She has previously unsuccessfully sought review of the Department’s decisions and has unsuccessfully sought Ministerial Intervention on five occasions.

Evidence provided to the Department

9.    With her application the applicant provided a Form 1507 (Evidence of intended medical treatment) signed by Dr Shapla Mahmud on 17 May 2022 which stated the medical condition requiring treatment was depression and anxiety, and the treatment was counselling, cognitive behavioural therapy by a psychologist as the medication is not improving. The applicant stated within her application for a Medical Treatment visa she would be under care from 18 May 2022 to 22 November 2022, no estimated cost was provided nor was any evidence of the planned treatment.

1. In a submission to the Department dated 23 May 2022, it states the applicant genuinely intends to apply for a Medical Treatment visa with the intention of receiving medical treatment. It states the purpose for the applicant’s stay is to solely receive medical treatment as she has been assessed by a clinical psychologist with depression and anxiety and that she has every intention of complying with her visa conditions, will not overstay her visa and intends to return to her home country of Fiji.

2. The submission states that the applicant has family, all of whom still live in Fiji and the following documents were provided to the Department:

   a.copies of the applicant’s daughter’s birth and marriage certificates.

   b.her son in law’s death certificate and an employment certificate in relation to his military service) and his estate document.

3. The submission also states that the applicant intends to temporarily stay in Australia for the purposes of receiving medical treatment as she suffers from depression and anxiety and that this is currently negatively affecting her overall health and wellbeing.

Evidence provided to the Tribunal

1. The Tribunal received a submission with a number of attachments including the applicant’s birth certificate, a copy of her mental health care plan, as well as further copies of the documents provided to the Department in relation to her daughter's birth and marriage certificates, and in relation to her son-in-law. The submission outlines the applicant’s migration history.

2. As outlined, the applicant waived her right to a hearing and asked for a decision on the papers and furthermore requested that the Tribunal support her application to the ministerial intervention unit should her review application be unsuccessful. The submission states that the applicant concedes that she has resided in Australia since 1922 and has a rigorous migration history. According to the submission the applicant “has endured a grievous previous amount of correspondence with the Department, refusals and remaining lawful on bridging visa ease which are unstable in nature given they are utilised to rectify the lawlessness of a person, whilst they await a visa decision and/or appeal”.

3. It was submitted that due to the constant issues regarding her migration status, it has caused an emotional and mental strain on the applicant that has led to the development of depression and anxiety. It was submitted that the applicant understands she must return to Fiji and that given her family connections and ability to reside in Fiji that she will do so but that initially she requires psychological treatment prior to returning to Fiji.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant satisfies the requirements of cl.602.215 which requires that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

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:

   ·is in Australia

   ·has turned 50

   ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

   ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

2. The records of the Department indicate that the applicant was in Australia at the time of application on 17 November 2022. Accordingly, the Tribunal finds that she satisfies the requirements of cl.602.212(6)(a). The evidence before the Tribunal indicates that the applicant was born in November 1949 and therefore, she has turned 50 years of age. Accordingly, the Tribunal finds that as she has turned 50 years of age satisfies the requirements of cl.602.212(6)(b). 

3. The 17 October 2022 submission from the applicant to the Tribunal indicates that the applicant was refused a [permanent] visa on 23 March 1994 but does not state the reason for the refusal. It also states she lodged a further [permanent] visa application on 23 August 1994. [Details deleted]. The submission also refers to the applicant making an application for an Aged Parent (Residence) (class BP) Aged Parent (subclass 804) visa.

4. The Tribunal notes that the submission states that the basis of the refusal of “Aged Parent (Residence) (subclass 804) was that Reg 804.226(1) and 804.226(2) were not met by the applicant i.e., meet health requirements. Ms. Reape and her husband were ordered to undergo medical examinations in order to satisfy PIC 4005 of reg. 804.226(1) and (2). While Ms. Reape met the health requirements on 10 Sep 2014, her husband did not complete his health examination despite many opportunities provided by the department”. There is no evidence before the Tribunal as to whether or not the applicant met all the criteria for the permanent visas other than the health criteria.

5. On the evidence before the Tribunal, it finds that although the applicant meets cl.602.212(6)(c), there is no evidence before the Tribunal that she meets cl.602.212(6)(d) and therefore the Tribunal is not satisfied she meets cl.602.212(6)(d). As she does not satisfy the requirements of cl.602.212(6)(d), she is unable to meet the requirements of cl.602.212(6) in its entirety.

6. There is no evidence before the Tribunal the applicant 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.

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

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

9. 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?

1. 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).

2. The applicant is a Fijian national and has spent a long time in Australia as outlined. A copy of a GP mental health care plan was provided to the Department in support of the application. The plan was completed on 15 May 2022 and the GP indicated a review date of 15 June 2022. A referral to a Mr Medhat Metry dated 15 May 2022 and signed by the GP was also provided to the Department indicating that's the applicant was being referred for “CBT for depression anxiety due to visa related stressors”.

3. The Tribunal notes that no evidence was provided to the Department or subsequently to the Tribunal regarding any appointments the applicant made for any treatment sessions with Mr Metry.

4. The Tribunal had requested that the applicant provide evidence of when her treatment is likely to end. In response, the submission to the Tribunal it states that the estimated time frame for her treatment was 18 November 2022 to 22 November 2022 but is subject to her progress and is reviewable on an ongoing basis. No evidence was provided that she had had any counselling sessions in respect to the cognitive behavioural therapy and counselling from a psychologist as per the GP referral.

5. The Tribunal is not satisfied that the applicant genuinely intends to remain in Australia temporarily for the purpose for which the visa is granted. The Tribunal has taken into consideration the applicant’s long history in Australia. No submissions were made as to why she remained in Australia for a lengthy period of time and was not previously prepared to return to Fiji but is now prepared to do so. The Tribunal has also taken into consideration that the applicant did not provide any evidence that she has attended counselling or cognitive behavioural therapy since she undertook a mental health care plan by her GP. This is of concern to the Tribunal as it raises questions about her genuineness. If as she has claimed she had been diagnosed with depression and anxiety and required counselling and cognitive behavioural therapy, it would not be unreasonable for her to have undertaken some sessions since her mental health care plan had been developed some months ago.

6. Given the above findings, cl 602.215 is not met.

7. 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.

Request for the Tribunal to support Ministerial Intervention

1. The Tribunal has had regard to the requests that the Presiding Member support the applicant in her application for ministerial intervention. However, the Tribunal notes that the submission does not lay out any basis for why and how the applicant’s case meets the Minister’s guidelines on ministerial powers. Given this absence, the Tribunal has not proceeded to support the applicant in this regard.

decision

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

Linda Holub
Member