Stojchevski (Migration)

[2021] AATA 2255

Stojchevski (Migration) [2021] AATA 2255 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sasho Stojchevski

CASE NUMBER:  1903983

HOME AFFAIRS REFERENCE(S):          BCC2019/333680

MEMBER:Joseph Lindsay

DATE:1 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 1 June 2021 at 11:01am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary entrant – applicant previously exhausted migration avenues – period of unlawful residence – mental health treatment – medically unfit to depart – mental health support services available in home country – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.211, 602.212, 602.215

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 8 February 2019 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 30 January 2019. 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 applicant attended an audio hearing with the Tribunal on 27 May 2021 to give evidence and present arguments. The Tribunal notes that the applicant’s relative, Mr Robert Stojcevski, was a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Subclass 602 (Medical Treatment) visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

   Is the visit for medical or related purposes?

6. Clause 602.211 requires that the applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes. Clause 602.215 requires:

   602.215

   (1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b) whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

   (c) any other relevant matter.

   (2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

   Clause 602.215 in Schedule 2 to the Migration Regulations is a criterion that must be satisfied, that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

7. In the hearing, the Tribunal noted that the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal spoke about the information in the delegate’s decision.

8. The delegate’s decision noted:

   a.On 19 June 2000, the applicant arrived in Australia as the holder of a Visitor (Subclass 676) visa.

   b.On 19 June 2001, the applicant lodged an application for a Protection (Subclass 866) visa which was refused on 4 December 2001. The applicant unsuccessfully sought various avenues of review for the refused application including Refugee Review Tribunal (RRT) and Ministerial Intervention. Further, the applicant was monitored by the Department when departing Australia on 3 April 2003.

   c.On 6 January 2017, the applicant arrived in Australia as the holder of a Partner Combined (Subclass 309) visa. The applicant commenced the second stage of his Combined Partner application (Subclass 100) visa which was refused on 2 November 2018.

   d.The applicant currently holds a Bridging (Subclass 050) visa.

   e.During his time in Australia, the applicant has been an unlawful non-citizen for 99 days.

   f.On 30 January 2019, the applicant lodged an application for a Medical Treatment visa, stating that he would like to remain in Australia until 30 July 2019 to seek medical treatment for anxiety and depression. A form 1507 has been provided in support of his application and confirmed that he was seeking medical treatment in Australia.

9. The applicant indicated that the information in the delegate’s decision, as detailed above, was correct.

10. In the hearing, the applicant gave evidence that he had been through a difficult time in respect to his ex-partner and that he was seeking mental health treatment. He indicated he just wanted to stay in Australia to continue his treatment and get back to the person he used to be before he became ill. The applicant’s cousin gave evidence in support of the applicant.

11. The Tribunal considered the submissions from the applicant’s representative, including:

    a.A script for prescription medication.

    b.A letter from a psychologist, Mr Zac Stojcevski, dated 20 May 2021 for the applicant.

    c.A letter from a psychologist, Mr Zac Stojcevski, dated 20 May 2021 for the applicant’s daughter.

    d.A statutory declaration from the applicant’s uncle, Mr Tome Stojcevski, dated 19 May 2021.

    e.A letter from the applicant’s representative dated 19 May 2021.

12. The statutory declaration, in summary, indicated that:

    -The applicant and his daughter have suffered hardship due to the applicant’s father’s former spouse and violence in the relationship.

    -The applicant and his daughter were previously sponsored on a Partner visa.

    -The ex-partner told the Department that the relationship had ceased, but the relationship had not ceased.

    -The applicant was not aware of that correspondence from the Department.

    -The applicant and his daughter found out they had no visa, they were devastated, and both accessed mental health treatment.

    -The applicant and his daughter are psychologically, mentally and emotionally unwell, and need to stay in Australia for support and treatment.

    -Going back to the Republic of North Macedonia at this time, given the current situation with COVID-19 in the Republic of North Macedonia, would create further issues for the mental health of both the applicant and his daughter.

13. The letters from the psychologist indicated that both the applicant and his daughter were receiving mental health treatment. The Tribunal spoke to the applicant’s representative in respect to her submission, and she asserted that the information before the Tribunal was correct and that the applicant and his daughter were both unfit to leave Australia.

14. The Tribunal spoke to the applicant about the country information in respect to the mental health support services available in the Republic of North Macedonia[1], indicating that mental health support services were available in the Republic of North Macedonia. In response, the applicant reiterated what he had previously said, and indicated that he just wanted to stay in Australia for as long as possible.

    [1] European Commission, Republic of North Macedonia – Mental Health, accessed 27 May 2021.

15. The Tribunal put to the applicant that, subject to his response, the Tribunal may find that he did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. In response, the applicant said that his priority was his health, and that was why he wanted to stay in Australia. He said that he was aware that he had previously lodged applications for permanent visas, but he now knows he cannot do that.

    Analysis and findings

16. The Tribunal has carefully considered the information made available to the Tribunal. The Tribunal accepts that the applicant and his daughter are currently receiving mental health treatment, but also finds that mental health treatment is reasonably available in the Republic of North Macedonia, in spite of the current effects of COVID-19.

17. However, the Tribunal accepts that the applicant has previously made applications for permanent visas and accepts that he has a clear desire to stay in Australia permanently. In respect to this information, the Tribunal places high weight on this evidence that strongly counters the applicant’s claims that he genuinely intends to stay temporarily in Australia for any reason, let alone for medical treatment.

18. In carefully considering and weighing the above factors, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 602.215 are not met. The Tribunal is also not satisfied that the applicant meets the requirements of cl 602.212(6) (medically unfit to depart).

    DECISION

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

    Joseph Lindsay

    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).