Thapa (Migration)

[2022] AATA 4623

Thapa (Migration) [2022] AATA 4623 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sushant Thapa

REPRESENTATIVE:  Mr Don Susantha Katugampala

CASE NUMBER:  2106268

HOME AFFAIRS REFERENCE(S):          BCC2021/507236

MEMBER:Naomi Schmitz

DATE:26 October 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 26 October 2022 at 1:21pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – genuine temporary entrant – migration history – time onshore in Australia – s.359(2) invitation – request for extension to respond declined – request for postponement of hearing declined – depression – paucity of medical evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A

Migration Regulations 1994 (Cth), Schedule 2, cl.602.215

CASES
Hasran v MIAC [2010] FCAFC 40

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 20 April 2021 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 7 April 2021. 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 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 11 May 2021 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 19 September 2022 the Tribunal invited the applicant under s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review, namely the applicant’s migration history and time onshore in Australia. The notice stated that the applicant’s migration history suggested that the applicant wishes to stay permanently in Australia.

   Your migration records indicate that:

   a.You arrived in Australia approximately seven years and nine months ago on 4 December 2014 on a Student (Class TU Subclass 573) visa which ceased on 22 August 2018. You have not departed since your date of arrival.

   b.Apart from one other Student visa (Class TU Subclass 500) granted to you on 6 October 2018 you have held bridging visas.

   c.You were unlawful for a period of approximately one month when your Student visa (Class TU Subclass 500) ceased on 10 March 2021 until you were granted a Bridging visa on 8 April 2021.

   d.You applied for a Post-Study Work Stream (Class VC Subclass 485) visa on 5 June 2018 and this application was refused on 7 June 2018.

   e.You made an application on 19 March 2021 for a Temporary Activity (Class GG Subclass 408) visa which was determined invalid on 25 March 2021.

   f.You made an application for a Medical Treatment (Class UB Subclass 602) visa on 7 April 2021 which was refused on 20 April 2021. You applied for review of this decision on 11 May 2021 which is the subject of this review.

6. The Tribunal also on 19 September 2022 and in the same letter, invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:

   1.Immigration records demonstrate that your last arrival in Australia was on 4 December 2014. You have held a succession of Student visas including a Subclass 573 and Subclass 500, the last of which ceased on 10 March 2021. Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   2.In your medical treatment visa application lodged on 7 April 2021, you claimed that you would like to remain in Australia from 7 April 2021 until 7 October 2021 to seek medical treatment. Why have you remained in Australia since 7 October 2021?

   3.The Tribunal does not have information concerning your medical treatment. Please provide information regarding:

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

   b.What your current medical treatment for those condition(s) involves;

   c.The prognosis of your medical condition(s); and

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

   4. Noting you have been in Australia since 4 December 2014 please provide any other information which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

7. The invitation to comment on or respond to information and request for information advised that if the applicant did not comment on or respond to the information put to him under s.359A and did not provide information pursuant to s.359(2) in writing by 3 October 2022, the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments: s.360(3) of the Act.

8. On 26 September 2022 the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:30am (VIC time) or 8:00am (NT time) on 12 October 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.

9. On 3 October 2022 at 1:06pm, the Tribunal received a request from the representative seeking an extension of 14 days to respond to the invitation to comment on or respond to information pursuant to s.359A and the invitation to provide information pursuant to s.359(2) dated 19 September 2022. The request stated, ‘the Applicant requires additional time to finalize the information to be submitted’.

10. Subsequently on 3 October 2022 at 3:58pm, the Tribunal received a request to postpone the hearing until December 2022 due to the visa applicant’s family travelling to Australia to visit the applicant and celebrate a ‘prominent Nepali festival’. The correspondence stated that the applicant wished to participate in festivities and spend time with his family and therefore is ‘unavailable’ for the hearing on 12 October 2022.

11. On 4 October 2022 the Tribunal advised that the Tribunal Member has considered the applicant’s request for an extension to respond to the s.359A and s.359(2) invitations carefully, but that the application was refused, as the application was not supported by any credible evidence and no cogent reasons were provided in support. The Tribunal Member further noted the request for an extension did not identify what documents the applicant was seeking further time to adduce, what the documents provide evidence of, and the relevance of the documents to the application for review. Of significance, the applicant lodged the application for review on 11 May 2021. The applicant therefore had approximately one year and five months to compile and submit evidence in support of his application for review and in the Tribunal’s view has had ample time. The Tribunal advised that as the applicant did not respond to the s.359A and s359(2) invitations and given the applicant’s request for an extension was refused, the applicant had lost his entitlement to a hearing. As the applicant lost his right to a hearing, the Tribunal Member did not need to consider postponement of the hearing.

12. On 4 October 2022 at 7:55pm the representative wrote the following in response to the Tribunal’s letter refusing the applicant’s request for an extension to respond for information:

    In this regard, we wish to state that, the applicant sought a request for an adjournment of the hearing due to unforeseen personal reasons, having been impacted with severe mental issues since the onset of the pandemic. In this regard the Applicant is currently recovering well due to a personal family visit since border restrictions have now eased and it is on this compelling and compassionate grounds that the Applicant sought an extension. By way of your letter is now our understanding that the Applicant’s request has been refused.

    We wish to further also refer to decision to deny the Applicant’s request to seek an additional 14 days to respond to information requested by way of email dated 19 September 2022. It must be noted that the Applicant requires additional time to provide the required information as the same is being finalized, hence sought additional time.

    We note the grant of the requests above is at the discretion of the Tribunal and we understand that pursuant to the Tribunal’s exercise of the same the Applicant’s hearing is cancelled. In this regard we wish to respectfully submit that both requests by the Tribunal was duly acknowledged by the Applicant and accordingly the requests for extension were also submitted within the required timeframe. It must be further noted that the request for an extension to respond to information must be submitted within the time frame i.e., by 03 October 2022 and this was also adhered to.

    In this regard, we respectfully seek consideration of both matters and whilst we acknowledge the Tribunal’s discretion, we kindly request the Tribunal to consider the above reasons and reinstate the hearing to the original date i.e. 12 October 2022 and the Applicant be provided the opportunity to submit the required information prior to the said date.

    It is our submission that the Applicant should not be unfairly penalised and/or lose his entitlement to a hearing for matters beyond his control. It is also our submission that the Tribunal take into

13. On 5 October 2022 the Tribunal advised that the Tribunal Member had considered the correspondence dated 4 October 2022. The Tribunal advised that the application for an extension was refused for the reasons outlined in the Tribunal’s letter dated 4 October 2022. No supporting evidence including medical was submitted in support of the application for an extension. The Tribunal Member further noted that the representative’s subsequent correspondence provided limited detail and no supportive evidence and overall, the Tribunal Member considered it vague and unsatisfactory. The Tribunal advised in these circumstances s 359C of the Migration Act 1958 (the Act) applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: see Hasran v MIAC [2010] FCAFC 40.

14. As the applicant did not comment on or respond to information and did not provide information pursuant to s.359A and s.359(2) of the Act, the applicant no longer had a right to appear before the Tribunal pursuant to s.360(3). The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear.[1] The Tribunal has checked and confirmed that the invitation was sent to the applicant’s last address provided to the Tribunal in connection with the review. On 5 October 2022 the hearing was cancelled, and the applicant was notified by email.

    [1] Hasran v MIAC [2010] FCAFC 40

15. The Tribunal up until the time of this decision has not received any further information or correspondence from the applicant. The Tribunal has proceeded to decide the review application on the evidence available to the Tribunal. [2]

    [2] Section 362B [Part 5] Migration Act 1958 (Cth)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born in 1995 and is thus currently 27 years of age. The applicant has not applied for a permanent visa while in Australia which was 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.

19. The s.359A invitation outlined in paragraph [5] above and delegate’s decision record detailed the applicant’s migration history.

    VISA APPLICATION

20. The applicant identified that he was in Australia, residing in the Northern Territory. He is a citizen of Nepal. At the time of application, the applicant wrote the purpose of his stay in Australia was medical treatment. His stay would be self-funded. He claimed he had sufficient savings to support himself. Attached to the visa application was a Commonwealth Bank of Australia statement dated 1 April 2021 with a closing balance of $10,105.65. He indicated he would be under medical care for six months from 7 April 2021 until 7 October 2021 due to the following:

    The applicant is currently undergoing consultations and treatment for severe depression anxiety and is in need of close supervision of his behaviours and habits. He is seeking a psychologist and his GP to monitor the situation. The psychologist has advised weekly meetings to observe the applicant. [3]

    [3] Departmental file BCC2021507236

21. Attached to the visa application was a Form 1507 signed by Dr Sithy Mujahitha Ahamed Lebbe on 7 April 2021. It detailed the medical condition requiring treatment as ‘depression’. The treatment information ‘Zoloft[4] 50mg daily and counselling’. Attached to the application was a letter from Dr Lebbe stating the following:

    This is to inform you that Sushant Thapa is suffering from depression. I had started treatment for him. He needs to continue the treatment at least for few months and he should stay in Australia for his medical treatment and regular review with GP and psychologist for the next few months.

    Past Medical History:  

    30/03/2021        Depression.

    [4] Zoloft is an anti-depressant that belongs to a group of drugs called selective serotonin reuptake inhibitors (SSRIs), which works by balancing serotonin levels in the brain and nerves.  Zoloft is used to treat some types of depression, premenstrual dysphoric disorder (PMDD), social anxiety disorder (SAD), obsessive-compulsive disorder (OCD), panic disorder (PD), and post-traumatic stress disorder (PTSD). accessed on 25 October 2022

22. The applicant also supplied an email chain dated 29 March 2021 from Industry Health Solutions regarding an appointment on 6 April 2021 for a NTG employee.

23. No other medical information was provided with the application or in connection with the review.

24. At the time of application, the applicant declared that he has never married. He claimed to have a brother and sister who reside in New South Wales, Australia. He declared he had a previous Subclass 485 visa refused on 7 June 2018. In association with the applicant’s Medical Treatment visa application, the applicant was issued with a bridging visa with a no work condition.

    FINDINGS and REASONS

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

26. 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.

27. The Tribunal has considered all relevant matters. The applicant first arrived in Australia on 4 December 2014 on a Student (Subclass 573) visa and has maintained a continuous residence in Australia for over seven years and 10 months, using a succession of temporary visas and bridging visas, a significant period of time which the Tribunal places adverse weight on.

28. During the applicant’s time in Australia, the applicant has been an unlawful-non-citizen for approximately one month, which the Tribunal places adverse weight on. From this history, it appears the applicant is prepared to disengage from immigration authorities and only make himself visible when it suits his purpose. Consequently, 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.

29. 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. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507 and letter dated 7 April 2021. The email chain dated 29 March 2021 lacks detail. Approximately one year and six months have passed since those documents were completed and no updates on treatment have been provided. The Tribunal finds this perplexing given the applicant was recommended ‘regular reviews from his GP and psychologist’ for three months and claims to continue to suffer from ‘severe mental issues’. 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.

30. The Tribunal has taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa E (Subclass 030) well beyond the time he had requested (21 October 2021), over one year, by virtue of the time it has taken to bring this matter to review and despite this additional time, there is no evidentiary material that the applicant has made any efforts to seek medical treatment for his depression. Consequently, this raises doubts that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted but intends to continue an ongoing residence in Australia.

1. Further there is no evidence that the applicant could not seek medical treatment in his home country of Nepal. There is also no evidence before the Tribunal that the applicant is not able to purchase anti-depressant medication. As such, the Tribunal is not persuaded 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. The Tribunal has also considered the applicant’s personal and economic circumstances in Nepal and Australia and is not satisfied that it would encourage him to return to his home country at the end of the proposed stay. For example, the applicant’s family composition, his relationship with his family members, the applicant’s job prospects in Nepal or assets. The Tribunal has considered the evidence the applicant filed in response to the Department’s natural justice letter. This included a relationship verification certificate, a property valuation certificate and a one-way flight ticket dated 3 June 2021 departing from Darwin to Nepal. The Tribunal has considered these documents carefully; however, they do not allay the Tribunal’s concerns given the length of time the applicant has remained continuously onshore in Australia and therefore the Tribunal places limited weight on them. The Tribunal accepts that the applicant has some remaining family in Nepal, including a mother, father and brother, but given the applicant has not returned to Nepal in approximately eight years to visit them, the Tribunal does not regard them as a strong incentive to return. The Tribunal further notes that the applicant is not the registered owner of any of the properties listed in the property valuation certificate in Nepal. There is no evidence that the applicant paid for the flight ticket and in fact, the applicant did not ultimately depart Australia.

3. Further, the Tribunal notes that the applicant is now 27 years of age having first come to Australia as a 19-year-old. The Tribunal considers that the applicant has now spent a good part of his adult years in Australia, and that starting over in Nepal will present challenges to the applicant. Whatever the motivation for the applicant remaining in Australia, it would appear that the conditions here have encouraged the applicant to continue remaining in Australia and there are little personal and/or economic reasons for him to return to Nepal.

4. 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.

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

   decision

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

   Naomi Schmitz
   Member