Thajali (Migration)

[2022] AATA 2265

Thajali (Migration) [2022] AATA 2265 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Man Bahadur Thajali

CASE NUMBER:  2014148

HOME AFFAIRS REFERENCE(S):          BCC2020/2131153

MEMBER:Naomi Schmitz

DATE:4 May 2022

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 04 May 2022 at 11:33am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – entered Australia as dependant in fake marriage – long stay, periods as unlawful non-citizen, previous visa applications refused and tribunal reviews and court appeals unsuccessful – no medical information provided, no treatment undertaken and period of proposed treatment passed – no incentives to depart or arrangements made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215

CASE
MIAC v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11

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 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 20 August 2020. 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. On 28 August 2020 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.

4. On 18 August 2020 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 31 March 2022 the Tribunal wrote to the applicant for two reasons.

6. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 11:00am on 19 April 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. The second reason was to request under s.359(2) of the Act that the applicant provide the Tribunal with information to address the following:

   ·Immigration records demonstrate that your last arrival in Australia was on 14 January 2009 on a Vocational Education and Training Sector visa (subclass 572). Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   ·In your medical treatment visa application lodged on 20 August 2020, you claimed that you would like to remain in Australia from 25 September 2020 until 25 September 2021 to seek medical treatment. You did not identify what medical treatment you sought or the estimated cost. Why have you not departed Australia since 25 September 2021?

   • The Tribunal does not have current medical evidence concerning your medical treatment. Please provide a current medical report detailing your medical condition(s) including:

   o    When you were first diagnosed with those condition(s);

   o    What your current medical treatment for those condition(s) involves and evidence of current treatment;

   o    The prognosis of your medical condition(s); and

   o    When does the medical treatment you have undertaken end or when is it due to end?

   • Noting you have been in Australia since 14 April 2009 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

8. The request for information was accompanied by various administrative matters, and advised the applicant that if the information was not provided in writing by 14 April 2022, the Tribunal hearing scheduled on 19 April 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act. The applicant did not provide information as requested in the letter issued pursuant to s.359(2) of the Act.

9. On 8 April 2022 the Tribunal sent an SMS hearing reminder to the applicant’s mobile phone. The Tribunal did not receive a delivery failure notification. On 12 April 2022 the Tribunal conducted a successful Microsoft Teams test dial with the applicant. On 14 April 2022 the Tribunal sent a second SMS hearing reminder to the applicant’s mobile phone.

10. On 8 April 2022 the applicant returned a signed response to hearing invitation form. Although the applicant did not provide a specific written response to the s.359(2) notice, the Tribunal allowed the hearing to proceed and adopted a ‘broad’[1] interpretation as to what constitutes a ‘response’, noting that the applicant is self-represented and not a qualified lawyer or migration agent. The Tribunal accepted that the applicant’s oral representations to the Tribunal[2] that he wished to attend the hearing and his signed response to hearing invitation was his response.

    [1] MIAC v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11

    [2] Tribunal Case Note 2 - 12 April 2022

11. The applicant appeared before the Tribunal on 19 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

14. 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) which requires that an 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.

15. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born on [date] and is thus currently 42 years of age. The applicant has applied for two permanent visas while in Australia, namely two [specified] visas which were refused. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    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.

16. The delegate’s decision record detailed the applicant’s migration history.

17. The applicant arrived in Australia on 14 January 2009 on a Student (Subclass 572) visa and has not departed since that day.

18. Whilst onshore the applicant applied for a [specified] visa that was refused on 2 September 2010.

19. The applicant sought review of the delegate’s decision to refuse the [specified] visa at the Federal Court which was finalised as a Minister win on 5 May 2011.

20. The applicant then unsuccessfully sought further judicial review at the Full Federal Court with a Minister win recorded on 3 August 2011.

21. The applicant remained in Australia as an unlawful non-citizen until 20 May 2014 when the applicant lodged a second application for a [specified] visa.

22. The applicant’s second application for a [specified] visa was refused and the applicant sought review at the Tribunal, the Federal Court and Full Federal Court where another verdict of Minister win was recorded on 12 May 2017.

23. On 19 June 2017 the applicant made an application for a Medical Treatment (subclass 602) visa that was refused on 20 June 2017.

24. The applicant subsequently sought administrative review at the Tribunal and judicial review with a Minister win recorded on 2 November 2018.

25. The applicant again overstayed the associated Bridging visa (subclass 030) held at that time and remained in Australia as an unlawful non-citizen until the applicant’s present medical treatment visa application.  

26. On 21 August 2020 the applicant was issued with a Bridging visa C which has an 8101 ‘no work’ condition.

    VISA APPLICATION and EVIDENCE AT HEARING

27. The applicant is a citizen of Nepal, born in Myagdi, Gandaki, Nepal. The applicant gave evidence that he is currently residing at a share house, renting a bedroom with a friend in New South Wales (NSW), Australia. He has resided at the same property since arriving in Australia in January 2009. The applicant stated he pays $300 per fortnight in rent and receives the funds to pay for his rent from friends. He has no significant assets such as property or a motor vehicle.

28. The Tribunal Member asked how the applicant was financially supporting himself in Australia and when he last worked. The applicant stated that ‘I get help from my friends. I ask that they pay for my expenses’ including rent, healthcare and food. The applicant could not recall when he had last worked, but thought it was approximately four to five years ago. The applicant claimed he worked as a teacher in Nepal for two years prior to travelling to Australia. He also stated he did unpaid farming work in Nepal.

29. The applicant gave evidence that the only remaining family in Nepal were his mother and one younger sister. His explained his father passed away approximately six to seven years ago. He gave evidence that he married a woman in Nepal, but that it was a ‘fake marriage’. He explained he married his ex-wife in Nepal in order to come to Australia. He came as a dependent applicant on his ex-wife’s Student visa. He stated he has no relationship with her and did not know where she was. The applicant gave evidence that he has no family in Australia, no children and is not in any relationship.

30. In the applicant’s visa application he claimed his stay would be self-funded and that ‘I have arranged to borrow the fund’. The applicant wrote the purpose of his stay in Australia was medical treatment for one year from 25 September 2020 until 25 September 2021. The applicant did not identify his medical condition or medical treatment provider. He stated ‘not yet know’ and in relation to the estimated costs ‘It will be provided soon once I have the details of its estimated costs’.

31. Attached to the visa application was a 1507 Form signed by Dr Salwa Wassif on 27 July 2020. It detailed the medical condition requiring treatment as ‘depression/anxiety’. The treatment information was ‘referral to a psychiatrist’. The details of the medical practice where treatment is to be provided were ‘St John of God Medical Centre‘ and the name of the treating medical practitioner ‘consultant psychiatrist’. No other medical information was provided with the application or in connection with the review.

32. At the time of application the applicant declared that he was divorced. In the applicant’s visa application he admitted to either not complying with visa conditions or overstaying in Australia (not specified) and having a visa application refused (particulars not provided).

33. At hearing the applicant gave oral evidence that he had not breached any visa conditions. He claimed that prior to his current bridging visa he had work rights and worked. However, since being granted his current bridging visa, he has not worked due to having no work rights. He claimed to be financially supported by friends who give him money to pay rent and bring him food. The Tribunal Member asked the applicant how he would survive if granted a Medical Treatment visa which has a ‘no work’ condition. The applicant claimed he would be financially supported by friends.

34. At hearing the Tribunal Member put to the applicant that he had periods of being an unlawful noncitizen, including most recently from 1 December 2018 until 20 August 2020 (629 days) and asked why the applicant had not made efforts to regularise his migration status. The applicant stated he understood, but did not want to say anything and did not have any reason to speak to the Department.

35. The Tribunal Member told the applicant that it had reviewed the applicant’s migration history which suggested that he wished to stay permanently and would not leave. The applicant stated that before lodging his Medical Treatment visa he wanted to stay permanently in Australia. He stated he would have problems returning to Nepal, including having ‘no job, no finances and assistance from the government’. He however claimed he wanted the Medical Treatment visa to get medical treatment in Australia as there ‘is not good medical treatment facility in Nepal’.

36. The applicant gave evidence that he is suffering from depression. He confirmed he had not seen a psychiatrist since lodging his application due to not having money and stated treatment was expensive.

37. The Tribunal Member asked the applicant why he still needed the visa given he had over one year and eight months since the time of application, on 20 August 2020 to seek medical treatment. The applicant was evasive and refused to answer the question stating ‘he wanted to stay here for a long time to do my treatment’. The Tribunal asked the applicant why he had remained in Australia despite writing that he wanted to remain in Australia until 25 September 2021 for medical treatment, an additional seven months. He stated because he ‘had not been treated well’ and still needed more time to undertake medical treatment.

38. The Tribunal Member asked the applicant what he plans were after the Medical Treatment visa expired. The applicant claimed he would do his treatment and return to Nepal.  The applicant claimed he had not undertaken any arrangements to return to Nepal and confirmed he was double vaccinated.

39. The Tribunal explained that as a relevant factor it may consider the situation of a visa applicant’s home country, Nepal, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which discusses the political instability, ethnic conflicts and natural disasters in Nepal which have negatively impacted on the economy. Nepal is considered among the poorest and least developed countries in the world. Nepal’s health system is challenged by the country’s widespread poverty, limited government funding and its remote and mountainous geography which hinders the development of health infrastructure and access to health services. Health care services are generally considered inadequate by international standards. The Tribunal Member contrasted Nepal’s situation with Australia, which is stronger economically, politically stable and has a well-resourced health care system and asked in light of these differences, why this would not be a disincentive to return to Nepal.[3] The applicant did not dispute this information, stating that there was not much job opportunity in Nepal and that the health care system was not good. Whereas in Australia, he stated there is lots of job opportunity and the health care system is better and that’s why he wanted to undertake his treatment in Australia.

    [3] Department of Foreign Affairs and Trade Country Information Report – Nepal dated 1 March 2019

    FINDINGS AND REASONS

40. In the present case, the applicant seeks the visa for the purposes of seeking medical treatment for depression and anxiety. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

41. There is no evidence before the Tribunal that there has been non-compliance with the conditions of the applicant’s last substantive visa or any bridging visas held. There is no evidence suggesting that the applicant does not intend to comply with conditions which may attach to the visa.

42. The Tribunal has also considered other relevant matters. The applicant first arrived in Australia on 14 January 2009 and has remained onshore continuously for over 13 years and three months, a significant period of time which the Tribunal places adverse weight on.

43. The applicant has had multiple periods of being an unlawful non-citizen including after the Full Federal Court refused the applicant’s first [specified] visa[4] (up until 20 May 2014 equating to approximately two years and eight months) and more recently after the refusal of his second [specified] visa (from 1 December 2018 until 20 August 2020 equating to 629 days),[5] a significant period of time which the Tribunal places adverse weight on. The Tribunal has serious concerns that the applicant wishes to continue to remain in Australia and that he will continue to do so, even if it means he will become unlawful as he has previously done. This is particularly so given his avenues for remaining in Australia have narrowed.  

    [4] Delegate’s decision record

    [5] Day calculation put to the applicant at hearing on 19 April 2022 pursuant to s.359AA

44. The Tribunal has also considered the applicant’s claims regarding medical treatment in Australia. The applicant has not provided any current or other relevant evidence which indicates that he is undergoing medical treatment and that he intends to stay temporarily in Australia for the purposes of medical treatment.

45. The applicant filed his visa application on 20 August 2020. Over one year and eight months have passed since the application was submitted and no updates on treatment have been provided. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 signed on 27 July 2020.

46. Over one year and nine months have passed since the Form 1507 was completed and no updates on treatment have been provided. The Tribunal has had regard to the applicant’s evidence that he has not sought medical treatment due to having limited money, however, does not accept the applicant’s claims. The applicant gave evidence that for one year and nine months he has been financially supported by various friends, who pay for his rent, healthcare, daily living expenses and food. The Tribunal finds it implausible that the applicant could not use some of this money or support network to fund his treatment for depression and anxiety. Given the Tribunal wrote to the applicant and requested information about his medical condition(s) and treatment(s) and received nothing in support, the Tribunal suspects that the applicant attended his general practitioner once as evidenced by the completed Form 1507 and did not present again. This is further supported by the applicant’s viva voce evidence at hearing that he never consulted the psychiatrist he had been referred to by Dr Wassif and had not done anything since lodging his visa application. The Tribunal considers the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) indicates that the applicant did not apply for the visa for medical treatment, but did so to maintain an ongoing residency in Australia.

1. The Tribunal has also taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa 030, well beyond the time he had requested (25 September 2021), approximately seven months, by virtue of the time it has taken to list this matter for review and despite this additional time, the applicant has made no efforts to seek medical treatment. Accordingly, this raises doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is medical treatment, but intends to continue an ongoing residence in Australia.

2. This is further supported by the applicant’s migration history, which indicates that the applicant has remained onshore in Australia since 14 January 2009 and has not departed. Since the applicant’s arrival he has had a cycle of refused visas. The applicant has lodged two [specified] visa applications and subsequently sought avenues of review including administrative and judicial review which were unsuccessful. The applicant has also applied for and been refused a Medical Treatment visa and again unsuccessfully sought administrative and judicial review and remained unlawfully in Australia until applying for the present Medical Treatment visa. The Tribunal places adverse weight on the applicant’s migration history.

3. The Tribunal has also considered the applicant’s personal circumstances in Nepal and Australia and is not satisfied that the applicant genuinely intends to stay temporarily in Australia. While the Tribunal accepts that the applicant does not have any family members who reside in Australia, given his lengthy stay in Australia, in addition to the close network of friends who financially support the applicant in Australia, the Tribunal doubts that his ties with his mother and sister overseas outweigh those in Australia. This is further supported by the applicant’s evidence of there being less desirable economic conditions in Nepal including ‘no job, no finance and no assistance from the government’ and poor health facilities.

4. The Tribunal further notes the applicant was prepared to enter into a ‘fake marriage’ to facilitate migrating to Australia which the Tribunal places adverse weight on. The fact that the applicant entered into a sham marriage to get to Australia also casts significant doubt on the applicant’s credibility and claims of intending to stay temporarily in Australia. The Tribunal further notes that the applicant is now 42 years of age having first come to Australia as a 29-year-old. The applicant has spent a good part of his adult years in Australia and that starting over in Nepal will present challenges to the applicant.

5. In light of the strong financial support by friends in Australia, the general country conditions in Nepal, the applicant’s personal circumstances and migration record, the Tribunal is not satisfied that the applicant would be motivated to return to Nepal after his proposed medical treatment. Overall, the Tribunal finds that the conditions in Australia are such that they might encourage the applicant to remain here.

6. Overall, the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

7. Given the above findings, cl.602.215 is not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa decision.

   DECISION

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

   Naomi Schmitz
   Member