Baljeet Singh (Migration)

[2018] AATA 5879

Baljeet Singh (Migration) [2018] AATA 5879 (12 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baljeet Singh

CASE NUMBER:  1732151

DIBP REFERENCE(S):  BCC2017/4477470

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 December 2018 at 3:35 pm (QLD time)

DATE OF WRITTEN RECORD:                15 January 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 15 January 2019 at 4:39pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor)(Class UB) visa – Subclass 602 (Medical Treatment) – does not genuinely intend to stay in Australia temporarily for medical treatment – no evidence of ongoing or future treatment – multiple visas – no work condition breached – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215, Condition 8101

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 December 2017 to refuse to grant the visa applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 December 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 December 2017 to refuse to grant the applicant a Medical Treatment visa under section 65 of the Migration Act.

2. The applicant applied for the visa on 24 November 2017. At that time Class UB contained one Subclass, Subclass 602 Medical Treatment. The criteria for the grant of a Subclass 602 visa are set out in Part 602 of Schedule 2 to the Migration Regulations.

3. The delegate refused to grant the applicant a visa because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa would be granted.

4. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Punjabi and English languages.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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; namely, for medical treatment.

2. 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 a Subclass 602 visa would be subject and any other relevant matter.

1. The applicant provided the Tribunal with a copy of the Department's decision record which outlined the applicant's immigration history in Australia. The Tribunal also has a copy of the applicant's movement records which were put to the applicant for comment in the required way.

10.The applicant arrived in Australia in November 2008 as the holder of a Subclass 572 student visa. That visa ceased on 11 April 2011. The movement records do not appear to show that there were any conditions attached to that visa. It appears that the applicant remained in Australia as an unlawful non-citizen without holding a visa from April 2011 until April 2015.

11.It appears that in April 2015 the applicant applied for a Protection visa and was granted a bridging visa as a consequence. He has been granted a number of bridging visas since, the most recent of which was granted in November 2017 in association with this application for a Medical Treatment visa. That visa was subject to a no work condition. The applicant has admitted during the hearing that he undertook some work to assist friends in cleaning from time to time and would receive either a small amount of money or assistance in paying for rent or groceries as a consequence of that work. Therefore, it is apparent that the applicant breached condition 8101 of the visa he currently holds.

12.As the applicant has breached the no work condition of his current visa the Tribunal also finds that the applicant would be likely to breach the no work condition of a Subclass 602 visa if it were granted to him. While these matters would normally weigh in favour of finding that the applicant did not intend to stay in Australia temporarily, for the purposes of this decision the Tribunal places no weight on either the breach of the no work condition or the likelihood that the applicant would breach the no work condition of any future Subclass 602 visa.

13.The Tribunal has also taken into account all other relevant matters including all evidence that the applicant has provided in support of his case and Departmental policy contained in the Department's Procedures Advice Manual.

14.The Tribunal finds that clause 602.215(1) applies in this case as it is clear that the applicant does not meet the requirements in subclause 602.212(6) in that he has not turned 50, he has not applied for a permanent visa which would have been granted but for the health requirements and a medical officer of the Commonwealth has not found that he is medically unfit to depart Australia.

15.The visa applicant gave evidence that he had separated from his wife while he has been in Australia. He said that she has returned to India where she resides with their child and that if he were to return to India there would be problems as his family would expect him to have the child come and live with him and his family there.

16.The applicant, when he applied for the visa, provided a completed form 1507 which is entitled “Evidence of Intended Medical Treatment.” In that form a Dr Jay indicated that the applicant required treatment for chronic depression, anxiety and stress. He indicated that the treatment required was “physio, analgesic and antidepressants.” He indicated that he would be providing the treatment.

17.In the visa application form the applicant indicated that he required medical care between December 2017 and January 2018 to treat chronic depression, anxiety and stress. 

18.Despite these claims, at the hearing the applicant indicated that he had only sought medical attention twice in the last year. He said that a year ago he was admitted to hospital suffering an infection and he said that about three months ago he had attended on Dr Jay who had prescribed him some tablets to treat tension.

19.The Tribunal asked the applicant what his plans were for future treatment in Australia. The applicant indicated that if he felt tension he would simply take one of the tablets that he was prescribed. The applicant gave no evidence of ongoing physical therapy or any other treatment which he has been undergoing or will undergo in the future.

20.The applicant indicated that he intended to remain permanently in Australia to work. He said that he did not intend on returning to India as he said that if he returned to India problems would occur from his family insisting that he bring his child to live with them in India. The applicant admitted that he could seek effective treatment for tension in India but that he simply did not want to return there because of the problems that I have mentioned.

21.The Tribunal finds that the applicant does not intend to remain temporarily in Australia for the purpose of seeking medical treatment.

22.First, he has failed to outline any future treatment which he would be undertaking in Australia short of taking a tablet when he felt tension.

23.Secondly, he has not been undertaking the treatment which his doctor said that he was required to undertake since he has applied for the visa.

24.Thirdly, he has admitted that he could seek effective treatment for his tension in India and more significantly, he has told the Tribunal that he does not intend to remain in Australia temporarily but rather, that he intends to remain in Australia permanently and to work.

25.As the Tribunal has found that the applicant does not intend to remain temporarily in Australia for the purpose of seeking medical treatment, the Tribunal is not satisfied that the applicant meets the criteria for the grant of the visa in clause 602.215 of Schedule 2 to the Migration Regulations.

DECISION

26.The Tribunal affirms the decision not to grant the applicant a Medical Treatment visa.

Tigiilagi Eteuati
Member