Zayed (Migration)

[2021] AATA 1451

Zayed (Migration) [2021] AATA 1451 (14 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yaseen Azzam Arif Zayed

CASE NUMBER:  1908076

HOME AFFAIRS REFERENCE(S):          BCC2019/1065204

MEMBER:Nora Lamont

DATE:14 May 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 14 May 2021 at 8:45am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary entrant – treatment for anxiety, depression and compulsive disorder – long residence already – application for permanent visa refused and affirmed – no detailed evidence of medical treatment provided – availability of treatment in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.211, 602.215, 602.212(6)

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 22 March 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 4 March 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 delegate refused to grant the applicant the visa because the applicant is attempting to utilise the Medical Treatment pathway as a means to maintaining ongoing residence and they do not genuinely intend to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 10 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 must remain in Australia for his ongoing depression, anxiety and compulsive disorder.

   Is the visit for medical or related purposes?

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

8. The applicant has been in Australia since 2005.  Given the above findings, the requirements in cl 602.211 are not met.

   Is the applicant unfit to depart Australia?

9. 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.

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

11. The applicant has not turned 50 and whilst he has applied for a permanent visa in the past, he does not meet all the criteria for the visa as it was refused and affirmed. The applicant is not 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.

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

12. 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).

13. The applicant does not meet cl 602.216(6) medically unfit to depart and the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regards to the considerations set our in cl 602.215(1)(a)to(c) for the following reasons:

    ·The applicant in his original application in 2019 stated he was booked in for a colonoscopy and needed to attend this appointment, but he did not go to the colonoscopy appointment in 2019. When asked about his ongoing colon issues the applicant said he has had a colon issue since 2006 and that when it flared up in 2019 he was going to have the colonoscopy but his mental health became bad and he did not go to the appointment.

    ·The applicant gave the Tribunal a short letter from a psychiatrist outlining that the applicant is on an anti-depressant and has compulsive disorder. The applicant has been seeing the psychiatrist for several years. When asked if he was getting better the applicant said that recently he was getting better. The Tribunal did not receive an extensive report on the applicant’s mental health condition, nor did it receive any indication that the applicant was unfit to return home to Jordon. The applicant indicated he saw his psychiatrist every four to six weeks and he would ask his friend Ibrahim to send through the receipts for all his visits. The Tribunal gave the applicant until 13 May to provide the documents, but they were not received.

    ·The Tribunal received a letter from Dr Kennan Ismail who is a “supporter” of the applicant. The letter contained so many spelling mistakes and looked to have been cut and pasted. The letter stated the applicant has psychological issues and did not attend his colonoscopy appointment. The letter states the applicant needs to stay in Australia for another two years. There is no medical reason why the applicant needs to stay in Australia for another two years. The Tribunal asked the applicant about the letter and he said he was not a liar and the Tribunal did not say he was, just that the letter looked odd. The applicant said that it was a genuine letter and the Tribunal accepts that.

    ·The Tribunal asked the applicant why he did not want to go back to Jordon. He said that he wanted to continue his treatment here in Australia for another year then go back. The Tribunal told the applicant that country information indicates that he can see a psychiatrist in Jordon and that they have depression medication as well. The applicant said that psychiatrists in Jordon do not use the same techniques as they do here. The applicant also said he comes from a poor family and they cannot afford the treatment. The applicant then said his psychiatrist asked him if he was thinking of suicide to which he responded not at the moment but who knows what will happen in the future. The applicant also stated that since Syrian refugees have been coming into Jordon there is a shortage of medication and COVID is also a problem in Jordon. Whilst there is additional pressure on the Jordon health care system due to the Syrian Refugees current country information shows Jordon had a first-class healthcare system: [1]

    Although one of the smaller countries in the Middle East, many know Jordan for its advanced healthcare system. The international community, along with the World Health Organization, are consistently taking notes from the Jordanian healthcare system in the hopes of applying some of its stronger elements, such as widespread insurance coverage and increased investment, to countries with weaker systems.

    ·The Tribunal told the applicant that he had applied for so many visas the Tribunal felt he was just trying to extend his time in Australia. The applicant acknowledged he had applied for many visas but that he was having issues. However, the Tribunal is not satisfied the applicant intends to depart Australia.

    [1] >

    The Tribunal has considered all the evidence and has concluded that the applicant is wishing to stay in Australia and this visa is a way to extend his time. The applicant has been in Australia since 2005 and applied for numerous other visas. The Tribunal is not satisfied that the applicant intends to stay in Australia temporarily. The applicant has not provided the Tribunal with any compelling or compassionate reasons for staying in the country.

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

15. 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

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

    Nora Lamont
    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).