2217124 (Migration)

[2023] AATA 4508

2217124 (Migration) [2023] AATA 4508 (6 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2217124

MEMBER:Tania Flood

DATE:6 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 November 2023 at 9:07am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – previous visa refusals and reviews – pregnant at time of response to tribunal’s invitation, with no travel advised for baby for six months – baby now born – original conditions now resolved, and post-natal rest – not medically unfit to depart – attempt to prolong stay – decision under review affirmed

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

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 on 10 November 2022 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 21 October 2022. 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 was refused the visa because the delegate was not satisfied that she genuinely intends to remain in Australia temporarily for the purpose for which the visa is granted (cl.602.215).  

4. The applicant appeared before the Tribunal on 3 November 2023 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Punjabi and English language.

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

   BACKGROUND

6. Departmental records indicate that the applicant first arrived in Australia [in] June 2009 as the holder of a Student (Subclass 572) visa and has not departed since this time.  On 16 November 2011 the applicant was granted a further Student (Subclass 572) visa.  On 12 July 2013 she applied for another Student (Subclass 572) visa but this was refused on 10 January 2014. The applicant sought review at the Migration and Refugee Review Tribunal and the decision was affirmed on 16 July 2014.

7. The applicant overstayed her visa but was later granted a Bridging E (Subclass 050) visa and thereafter was granted a series of Bridging E visas including on departure grounds.  On 12 October 2014, five years after her arrival in Australia, she applied for a Protection (Subclass 866) visa which was refused on 2 December 2016.  She unsuccessfully sought review of the decision by the Tribunal and by the Federal Court of Australia.  She also previously sought ministerial intervention however this was not considered.

8. The applicant has not held a substantive visa since 15 July 2013. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

10. 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.

11. The applicant is in Australia and according to the available evidence her date of birth is [Date].  The applicant is therefore [Age] years of age.  Given this the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

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

12. In her application for a Medical Treatment visa the applicant indicates that she is an Indian citizen who is seeking to obtain medical treatment in Australia from 21 October 2022 to 21 October 2023.   She declared she previously overstayed her visa and has had a visa refused in Australia.   In an attached Form 1507 it is indicated that she has Tonsilitis/Diverticulitis and requires treatment including antibiotics, x-ray and follow-up.   No other medical evidence was included with the application.

13. On 2 August 2023 the Tribunal wrote to the applicant inviting her to provide information about the type of medical treatment she has undertaken or is still required, including copies of any relevant medical reports.  Noting that her migration history could indicate she may not genuinely intend to stay temporarily in Australia for the purpose for which the medical treatment is granted she was also invited to provide comments or responses to counter this observation.

14. On 16 August 2023 the applicant responded to the Tribunal’s invitation.  She stated that she was pregnant and due to give birth [in] August 2023.  She stated that due to complications in her medical condition she is unable to depart Australia until 30 February 2024.    She states that travel with a newborn baby is not recommended for up to 6 months post-delivery. The applicant also stated that her intention to stay in Australia is solely for the purpose of undergoing necessary medical treatment related to her pregnancy and ensuring the safety and well-being of her child. 

15. Attached to her submission is a report from [Hospital] dated 5 July 2023 indicating pregnancy and hypothyroidism; an Antenatal Schedule from [Health]; a Pregnancy Health Record from [Health]; a letter from [Dr A], dated 8 August 2023, which indicates that due to complications in her medical condition the applicant will be unfit for international travel up to 30 February 2024.  It is further stated that travel with a newborn baby is not recommended for up to six months.

16. On 4 October 2023 the applicant provided a copy of a Discharge Summary report from [Health] indicating her child was delivered by caesarean section on [Date].

17. During the hearing held on 3 November 2023 the Tribunal discussed with the applicant her migration history.  The applicant stated that she came to Australia in 2009 to study and has never returned to India since that time.  She said she applied for a Protection visa which was refused and affirmed by the Tribunal and the court.  She also confirmed she unsuccessfully sought Ministerial intervention.  She cited problems with her former husband and their respective families as the reason why she feared returning to India at that time.   The applicant advised the Tribunal that she has remarried an Indian citizen in Australia and they have a [Number]-month-old child together.  Her new husband is working on a temporary resident visa.  She said that they are thinking about the possibility of moving to a third country but at this stage have no concrete plans.  She stated that in the meantime her husband is working full-time in Australia and cannot return to India with her and she cannot travel by herself.

18. The Tribunal enquired whether the applicant is currently undergoing any medical treatment.  She advised she is not undergoing a medical treatment plan at this time. She stated that she was advised to rest for six weeks following her caesarean delivery but that time has passed and now she is generally feeling fine.  The Tribunal asked her if there are any ongoing problems associated with the condition she originally sought treatment for, namely Tonsilitis/Diverticulitis, as mentioned in her application for the Medical Treatment visa.  The applicant responded that this condition has since resolved.  The Tribunal put it to the applicant that her evidence indicates she is not subject to any medical treatment plan and she agreed that was correct.

19. The Tribunal put it to the applicant that her migration history, which indicates she has remained in Australia continuously for 14 years together with her attempt to secure a permanent visa indicate she is highly motivated to remain living in Australia.   The Tribunal acknowledged her earlier evidence in respect of her future plans with her new husband  but indicated those plans appear to be lacking in detail.  The Tribunal put it to the applicant that it is concerned she may be attempting to use the medical treatment visa pathway purely as a means of prolonging her stay in Australia.  The applicant responded that she is waiting for her daughter’s passport to be issued and will respect the decision of the Tribunal.

20. While the applicant has stated that it is her intention to stay in Australia solely for the purpose of undergoing necessary medical treatment related to her pregnancy and ensuring the safety and well-being of her child the Tribunal is not persuaded on the evidence overall that her intentions are genuine.  Relevantly, based on her oral testimony she is not currently undergoing any medical treatment and there is no suggestion that she plans to seek further medical treatment.  Further, as noted above the applicant has resided continuously in Australia for fourteen years and her migration history, which is outlined above, strongly suggests she desires to remain in Australia indefinitely if not permanently.  She has remarried an Indian citizen in Australia who is currently working full-time on a temporary visa.  She indicated that he would not return to India with her and she stated that she could not return to India alone.  Based on her oral testimony the Tribunal is not persuaded that she and her new husband have any immediate plans to return to India.  Whilst it may be the case that she and her husband are discussing options for residency elsewhere there is no indication that any concrete plans have been made to that effect. 

21. Based on the available evidence the Tribunal cannot be satisfied that the applicant is seeking medical treatment; that she intends to comply with the conditions to which the Subclass 602 visa would be subject or that she is a genuine temporary entrant.  The Tribunal considers the applicant is using the Medical Treatment visa pathway purely as a means of prolonging her stay in Australia. 

22. Having regard to the considerations in cl 602.215 (a) to (c) and the matters set out above, the Tribunal is not satisfied that the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted.

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

    DECISION

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

    Tania Flood
    Member