2013284 (Migration)

2013284 (Migration) [2021] AATA 5535 (20 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harminder Singh (MARN: 1803378)
CASE NUMBER:  2013284
MEMBER:F. Simmons
DATE:20 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

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Statement made on 20 December 2021 at 4:22pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – an unlawful non-citizen – adverse migration history – genuine intention to stay temporarily – maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65, 359, 359C, 360, 363A
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

CASES
Hasran v MIAC [2010] FCAFC 40
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 2020 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 24 July 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).
The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met cl 602.215 of the Regulations. The delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment.
On 3 December 2021 the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting the review applicant to provide information about whether he met the requirement in cl 602.215. The applicant is represented in relation to the review. The invitation was sent to the last address provided in connection with the review and he was advised that, if the information was not provided in writing by 17 December 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal did not receive a response to this request within the prescribed period. The Tribunal received a response to this request on 20 December 2021. The response consisted of documents that had previously been provided to the Department and a statement from the applicant. While the response is dated 16 December 2021, it was filed with the Tribunal on 20 December 2021.
The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances s 359C applies, and pursuant to s 360(3) the review 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 to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has therefore decided to proceed to a decision based on all the information before it without taking further steps to obtain information from the applicant.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 cl 602.215 of the Regulations.
Background
The applicant is a citizen of India who was born on [date]. He first arrived in Australia on [date] April 2007 and has not departed. The Tribunal has considered the Department’s file which contains his application for the Medical Treatment visa as well as supporting documents and information he filed with the Department.
According to the visa application, the applicant seeks medical treatment because he is ‘experiencing multi level disc protrusion and bulges’. The application states the ‘applicant possibly requires spinal surgery. Physio treatment may be also be required for pain management’. A form 1507 dated 23 July 2020 and signed by a general practitioner [states] that the applicant ‘possibly needs spinal surgery’ because of nerve compression and requires physio for pain management. The same doctor referred the applicant to a physiotherapist on 23 July 2020. The applicant estimated the period of time in which he would require medical care would be from 24 July 2020 to 30 July 2021.
The applicant filed a copy of the delegate’s decision with the Tribunal. The applicant also filed various documents relating to his medical condition and treatment that were previously provided to the Department. No new information about the applicant’s medical condition or treatment was provided to the Tribunal.
The delegate’s decision records that the applicant arrived in Australia on [date] April 2007 and has not departed since. The delegate also records the following information about the applicant’s immigration history:
·     Onshore the applicant applied for a Visitor (subclass 676) visa but withdrew the application on 11 September 2009.
·     During the same time period the applicant made an application for Skilled Graduate (subclass 485) visa that was approved on 07 October 2010.
·     The applicant's visa expired on 07 April 2012 however the applicant remained on shore as an unlawful non-citizen until 19 April 2012 when he made an invalid application for Skilled residence (subclass 885) visa.
·     On 03 May 2012 the applicant made an application for Visitor (subclass 676) visa that was refused on 07 May 2012. The applicant sought review of the department's decision at AAT where the decision was affirmed on 15 April 2013.
·     On 20 May 2013 the applicant made a request for Ministerial Intervention that was not considered.
·     On 16 October 2013 the applicant lodged an application for a Protection visa that was refused on 02 April 2014. The department’s decision was affirmed by AAT on 15 April 2015. An application for judicial review was dismissed on 2 March 2017.
·     The Department attempted to contact the applicant regarding his immigration status however at this stage the applicant elected to disengage. The applicant has been present in Australia as an unlawful non-citizen without holding a valid visa from 30 March 2017 until the present.
In response to the delegate’s concerns about his immigration history, the applicant provided a lengthy statement and various supporting documents. Part of this statement is reproduced below:
I held Subclass 500 and complied with all my visa conditions. I did not breach any of my visa conditions. I was wrongly advised about my eligibility, and I was told that I was not eligible to apply for any other visa upon completion of Student visa. I decided to visit all the cities of Australia prior to departing to my home country.I applied for Visitor Visa Subclass 676.
Once I realised that I was eligible for a Subclass 485 visa, I applied for a Subclass 485 visa and it got approved. I complied with all my visa conditions. I found that I was eligible for a Skilled residence(subclass 885) visa but I overstayed only because my visa application was invalid and I became unlawful. I admit it was my own mistake. I did not have enough knowledge of Australian Visa System, on the other hand I did not have enough money to seek professional immigration advice. I provided all the information as per my best knowledge and unfortunately submitted an invalid application.
After that I submitted a Visitor Visa application and again I had no knowledge of eligibility. I looked at the information available on the department website and researched over the internet. I might have misread but I tried my best to overcome my situation.
I only applied for the Protection Visa as my circumstances had changed after I arrived in Australia. I provided all the information and evidence but I wasn't able to prove my protection visa claims. I had serious risks in India but they had been rectified by my parents in Feb 2020. I decided that I would go back but unfortunately due to Covid-19 I am not able to depart from Australia.
Even though my applications were invalid but I request you to please consider that I always had the intentions to remain lawful in Australia. I was not able to afford expensive immigration advice and it resulted in being Unlawful. I admit that I may have not been able to comply with my visa conditions but I also request you to please consider that I had been lawful during the period of my student visa and skilled graduate visa. Even though my visa applications were refused but still I maintained lawful status by holding a bridging visa.
I accept that I had been unlawful since 30 March 2017. I was waiting for my matter to be solved in India and I had no visa options and I was not eligible to apply for any visa during that period. As my matter was solved in my home country, the global Covid-19 Pandemic outbreak occurred and I was again not able to depart due to travel restrictions and health risks.
Why do I want to get Medical Treatment in Australia?
I have had issues with my back since Dec 2016 but I never sought professional help. I kept myself going by having medicine. Recently my back situation is getting worse and I had to seek medical advice here in Australia. I was waiting for my matter to be solved in India so I could go to India and get medical treatment in India.
Due to pandemic conditions in India, I can't travel to India any soon. I have high risks of getting affected by Covid-19 in case I travel. It is also not advisable to travel with my current medical condition. Air-travel may cause serious and permanent injuries. Long queues at the
airport will definitely trigger my back pain before I even get to the destination. It’s easier to prevent back pain than it is to treat it. I have recently found about the discomfort at the Indian International Airport on youtube. I can't see myself waiting that long and I won't be able to bear pain. Thus Air-travel during this Pandemic is definitely not a good idea. It is likely to get seriously injured during travel.
The delegate considered the applicant’s response but was concerned that the applicant had unsuccessfully applied for a series of visas including a permanent visa onshore and has taken every opportunity to present their case or circumstances for review. The delegate also noted that the applicant has also remained in Australia unlawfully and did not contact the Department when requested. Accordingly, the delegate was not satisfied that the applicant met cl 602.215 and refused to grant the applicant the visa.
On 3 December 2021 the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting the review applicant to provide information about whether he met the requirement in cl 602.215. As noted above, the Tribunal did not receive a response to this request within the prescribed period.
The Tribunal has considered the information that was filed with the Tribunal on 20 December 2021. The response consisted of documents that had previously been provided to the Department about his family and economic ties in India and a statement from the applicant which is largely repetitive of the earlier statement that was made to the Department.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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.
The applicant provided a copy of the delegate’s decision to refuse to grant him the visa dated 12 August 2020 to the Tribunal with his application for review. This decision indicates that the applicant was born on [date] and was in Australia at the time he applied for a Medical Treatment visa on 29 January 2020. The evidence before the Tribunal indicates that the applicant is not yet 50 years of age. Accordingly, the Tribunal finds that he does not meet the requirements of cl 602.212(6)(b).
If at least one of the requirements in cl 602.212(6)(a)-(f) is not met there is no need to consider the remainder, and cl 602.215 applies. However, for completeness, the Tribunal notes that while the applicant claims that a Medical Officer of the Commonwealth has provided evidence that he is unfit to depart, no such evidence has been provided – the only evidence the applicant filed with the Department was a letter from a general practitioner [dated] 29 July 2020 indicating that the applicant has chronic back pain and has been advised not to drive long distances; that is, with a travel time of more than an hour. This does not meet the requirements of cl 602.212(6)(f).
Given the above findings, the requirements in cl 602.212(6) are not met, and accordingly, the requirement in cl 602.215 does apply.
In his visa application, the applicant stated he seeks the visa for the purposes of medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.
According to the visa application, the applicant applied for the Medical Treatment visa for the purpose of seeking medical treatment for ‘multiple level disc protrusion and bulges’. The visa application includes a form 1507 dated 23 July 2020. The applicant also provided a CT scan of the applicant’s back, a referral by his GP to a physiotherapist, and a handwritten note from the physiotherapist stating the applicant had attended two sessions, the first on 24 July 2020 and the second on 1 August 2020. In his visa application, the applicant indicated that the period for which medical treatment was required was expected to end in July 2021. This period has now passed. No updated information was provided to the Tribunal about the impact of the physiotherapy or whether any further consideration was given to the possibility of spinal surgery.
The applicant has resided in Australia since 2007 and the Tribunal is concerned that his immigration history indicates that he wishes to remain in Australia on an ongoing basis. During the 15 years that he has been resident in Australia, he has unsuccessfully applied for a series of visas, including a permanent protection visa. While the Tribunal is prepared to accept that the applicant has complied with the conditions of bridging visas and temporary visas he has held and that he currently holds a bridging visa, the information before the Tribunal indicates that he has spent significant periods of time as an unlawful non‑citizen. Despite claiming that he has had back problems since 2016, he only applied for a Medical Treatment visa in July 2020, after his application for a protection visa was unsuccessful. The Tribunal has considered the applicant’s written evidence about his immigration history, including his claim that the risks that led him to apply for a protection visa have been rectified by his parents in February 2020 but then the COVID-19 pandemic meant he was unable to return home. However, the Tribunal is concerned that the applicant has remained in Australia beyond the period of time which he indicated was required for medical treatment and has not provided information about the medical treatment, if any, he has received in 2021.
The applicant’s immigration history together with the timing of his application for the Medical Treatment visa and the limited information about his plan for medical treatment causes the Tribunal to doubt whether the applicant genuinely intends to stay Australia temporarily for the purpose of medical treatment. While the Tribunal accepts that the applicant has back pain, for the reasons stated, the applicant has not provided the Tribunal with any updated medical evidence or any evidence that indicates that he has obtained any medical treatment in 2021. While he presented evidence of his family ties and family assets in India to the Department, his visa application states he is unmarried, and the presence of his parents and siblings in India has not motivated him to return to India while he has been in Australia. The Tribunal is therefore concerned that the applicant applied for the visa because he wanted to remain in Australia for purposes that are not connected to medical treatment.
The evidence before the Tribunal indicates that the applicant has seen his GP and sought medical advice and physiotherapy in relation to back pain in July 2020 and August 2020. While correspondence to the Tribunal filed on 20 December 2021 refers to medical reports, no new medical reports were filed with the Tribunal and there is no evidence relating to the applicant’s medical treatment in 2021. As noted above, while the applicant claims that he is unfit to depart, he has not provided any evidence from a Commonwealth Medical Officer; the only evidence relating to his ability to travel is a letter from a GP at [a] medical practice dated 29 July 2020 which states he has chronic back pain and has been advised not to drive long distances.
The applicant’s immigration history, the lack of any evidence about when he plans to depart Australia, the timing of his application for a Medical Treatment visa, and the lack of information about his current medical treatment or when this treatment will conclude all cause the Tribunal to be concerned that he does not have an intention to only stay temporarily in Australia for medical treatment. The Tribunal is not satisfied that the applicant genuinely intends to remain in Australia temporarily for the purpose of medical treatment.
Having considered all the evidence before it, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa is granted. Given the above findings, cl 602.215 is not met.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Frances Simmons
Member

[2021] AATA 5535

20 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction