Bhavdeep Singh (Migration)

Bhavdeep Singh (Migration) [2023] AATA 3559 (11 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr . Bhavdeep Singh
CASE NUMBER:  2209806
HOME AFFAIRS REFERENCE(S):          BCC2022/2007294
MEMBER:Mark O'Loughlin
DATE:11 October 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 11 October 2023 at 11:54am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – period of unlawful residence – employment in breach of conditions – capacity to meet treatment costs – no treatment pursued – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215
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 20 June 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).
The applicant applied for the visa on 3 June 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).
The delegate refused to grant the applicant the visa because the applicant was found not to have demonstrated that he genuinely intended to stay in Australia temporarily for the purpose for which the visa is granted as required by cl. 602.215 in Schedule 2 of the Regulations.
The applicant appeared before the Tribunal on 24 May 2023 to give evidence and present arguments.
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.
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 Tribunal has considered the evidence in this matter and is satisfied that the applicant was born on 8 August 1995, making him 28 years old at the time of this decision.
As the applicant had not turned 50, he does not come within cl.602.212(6).
The applicant must therefore satisfy cl.602.215 (1) to satisfy cl. 602.212
The applicant applied for the visa on 3 June 2022 by lodging an application with the Department.
He claimed to be suffering psychosocial disease and to require treatment to the cost of about $1,500.00. He said he is self funded for the treatment and to stay for the duration of the treatment.
He said his doctor is Dr. Lam Sung-Phu and that he would go to the doctor or the hospital for treatment.
He said he had breached a previous visa condition due to overstaying.
He also lodged a form 1507, Evidence of Intended Medical Treatment from Dr. Sung-Phu Lam indicating that he suffers from depression and anxiety, that Dr. Lam has been treating him and that he requires counselling.
The applicant also provided a statement addressed to “Kaye” apparently in response to a request for further information sent by the department in mid June 2022.
In that statement he says he visited Australia in 2019 on a student visa but that the borders were later closed due to COVID-19.
He said he stayed with his sister and brother in law.
He said his sister’s father in law had had kidney surgery with some apparent complications the year before. He said that because he could not visit his own parents in India he became stressed. He said this stress caused him to miss the visa deadline and resulted in him overstaying, by which he appears to mean he stayed illegally without a visa.
The hearing proceeded on 24 May 2023.
The applicant gave evidence that he had come to Australia on 17 July 2019 to study but the course proved too difficult and expensive, so after a year he transferred to a different course at a different institution.
He had not done well at that course either but was distracted because his sister’s father in law had fallen ill.
His said his original student visa had been valid until 10 September 2021 and that was extended to 15 March 2022 when he changed courses.
He said he was very stressed that he would need to repeat the semester and assumed he would get another bridging visa. He said he had been reading blogs and information on the internet about how to stay in Australia.
He said he had also consulted a migration agent.
He obtained a visa for a short grace period so he could arrange to return home to India and had bought a ticket to do so. However, when he was at the airport his sister called to say her father in law’s health had deteriorated. That was on about the 28 or 29 May.
On being asked if he could be more accurate, he said it was on 26 May 2022.
He said he went back out of the airport and went to see his sister’s father in law in hospital.
When he was leaving, customs noted that his visa was about to expire. He explained that there had been a medical emergency and promised them he would return.
The applicant told the Tribunal that his sister’s father in law was like a father to him and he was very upset.
He said he was going to return to the airport but his father in law asked him to stay and they could return together in August or September.
The applicant said he asked his migration agent who said it might be possible to get a medical treatment visa due to the stress and suggested the applicant go to the doctor and get a report.
He said he got a letter from Dr. Sung-Phu Lam, who was not his usual doctor. His usual doctor, Dr. Pradeepa, was busy. Dr. Sung-Phu Lam diagnosed psychosocial disease.
The applicant said he did not discuss the cost of treatment with Dr. Sung. The Tribunal noted he had put an estimate of $1,500.00 in his application and asked where that estimate came from. The applicant was not sure.
He said he did not seek further treatment from Dr. Sung. He returned to his usual doctor, Dr. Pradeep Kulatunga.
He said he was not sure when he saw that doctor but referred to the invoices.
The Tribunal noted that the first appointment with Dr. Kulatunga following 2 June 2022 was 18 July 2022 according to the invoices. The applicant said that in fact that appointment was with another doctor who was treating him for thyroid and a herniated disc and some allergies.
He said he understands that the thyroid condition was causing his depression.
He said he now seeks a medical treatment visa for treatment of his hypothyroidism. He said that was diagnosed first in 2017 in India.
He said he was treated there but not successfully.
He said he had not yet had any specialist treatment in Australia but he had had an ultrasound of his neck. He said that he had not yet seen a specialist but he had a referral to Professor Stanks. He confirmed it was the document provided to the Tribunal dated 1 August 2022.
He agreed that at the time of the hearing in May 2023 he had yet to make an appointment with Professor Stanks.
He said in the meantime he had suffered from allergies which had become much more important. .
He said he was also troubled by the disc herniations which were diagnosed on 23 December 2022.He had first noticed the related back pain in March 2021. Until November 2022 he had dealt with the pain by visiting chiropractors and physiotherapists.
He said he had been referred for an ultrasound guided steroid injection but was delaying that on advice from his physiotherapist, who told him not to get it.
He said the physio said the condition could be treated.
He said he had been to the physiotherapist about once a week starting in September 2021 for about 3 months.
He said he went to a new physiotherapist after his MRI scan which the Tribunal notes was on 23 December 2022. His had told him it would not be long and he could get the condition under control with treatment. The applicant understood the physiotherapist to mean 2 or 3 months.
He said his usual GP had referred him for the steroid injection but the applicant preferred the advice of his physiotherapist.
The applicant had treatments with the physiotherapist for about 3 weeks then maintained a guided gym program. He had also taken painkillers.
He said he stopped the gym program in February 2023.
He said he wants to get physiotherapy for his back pain.
The Tribunal noted that he had been first diagnosed with sciatica causing longstanding back pain in September 2021. He had had an MRI in December 2022 and it had been suggested he have a steroid injection or a course of physiotherapy.
He had done the physiotherapy for about 3 weeks but it was too costly so he reverted to a gym program.
He stopped that in February 2023 as his back was worse.
He agreed he now seeks a visa so he can pursue the course of physiotherapy. He agreed it is the same course that he abandoned 4 months earlier.
He said he had not started the therapy because he was awaiting the outcome of the visa application.
The Tribunal advised the applicant that his claim to wish to pursue physiotherapy was unconvincing. He did not respond.
The Tribunal asked the applicant about his need for treatment for his allergies. He said he gets them in the evening and early morning. He suffers from swollen face and takes anti allergy tablets for them.
He said he had been referred to Dr. Tiffany Hughes and referred the Tribunal to a letter of referral to Dr Hughes of 22 April 2023 from Dr. Kulatunga.
The applicant said he had a booking to see Dr. Hughes in December.
The applicant said he had first discussed his allergies with the doctor on about 21 September 2022. His GP suggested an assessment by the specialist but the applicant did not pursue it. He later returned for another referral and now wants to see the doctor.
He agreed that he was advised of the Tribunal hearing on 29 March 2023 and got the referral to Dr. Hughes on 22 April 2023.
He denied he was simply trying to arrange evidence for the Tribunal and said he genuinely wanted to pursue the treatment. He did not explain why he had not pursued it in the first place.
He said he does not have work rights on his bridging visa and had not been working. In the past he had worked for his brother in law as a courier.
The Tribunal took him to a bank statement he had provided as evidence of his capacity to fund treatment and a further stay.
He was asked about one of the entries which appeared to be a payment for work.
He said he had done some work with Airtasker, a relatively informal online work provider.
He agreed that that work had been in breach of his bridging visa conditions.
He said it was really only one job, but agreed it was a breach.
The Tribunal noted that there was another payment from Airtasker and asked if that was for more work. The applicant said he was not sure.
The Tribunal noted that there was a payment from the applicant’s brother in law’s courier franchise. The applicant said the $800.00 payment was a gift for a reason he could not remember but said it was not payment for work.
The Tribuna noted a cash deposit of $5,900.00 on 24 May 2022. He said he had a friend in the entertainment industry who wanted him to put the money into his bank so that he could pay it on.
The Tribunal noted that the payment on appeared to be $5,000.00 and that he had appeared to retain $900.00 of the money. The applicant could not remember what that was for.
The same applied to a cash payment of $7,350 on 28 May 2022 that was transferred the next day. The applicant could not remember those transactions and said it was probable the same thing as the earlier transaction he could not remember.
The Tribunal observed that the statement had been provided as evidence of the applicant’s capacity to meet the costs of his treatment but that in fact without transfers of $2,600.00 from his brother in law on 3 June 2022, the last day of the statement, his balance would have been $381.29 rather than $1,981.29.
The Tribunal noted that the bank statement did not support his capacity to meet the proposed cost of treatment. In fact it suggest that his account generally has a balance of about $50.00 to $60.00.
After the hearing the applicant provided a copy of his brother in law’s bank balance of $5,000.26 in credit and a statutory declaration from his brother in law dated 13 June 2023 to say he would support the applicant in both his living and medical expenses.
There was also a letter from the applicant’s GP dated 6 June 2023 saying he would benefit from exercise physiology and physiotherapy for the next 2 to 3 months, noting that the applicant had requested the issue of the letter.
There was also a referral to an exercise physiologist and a letter from Stephen Koutsouliotis, exercise physiologist, saying the applicant would benefit from 11 sessions over 12 weeks.
Finally there was an invoice and receipt for a treatment on 17 June 2023 with Mr. Koutsouliotis.
Does the applicant satisfy cl.602.215(1)?
The applicant has not complied substantially with the conditions of his bridging visa.
He has clearly worked in breach of the conditions of that visa. He claims that he only worked on one occasion as a favour for a friend.
The Tribunal has regard to the applicants explanations for other deposits to his account and is not satisfied that the applicant has only worked once as he says. In any event, even one instance of work means the applicant breached a condition of his bridging visa and the Tribunal weighs this against the application.
The 602 visa is likely to be subject to no work conditions. The Tribunal is not satisfied the applicant will abide by this condition because he has failed to do so in the past. The Tribunal weighs this against the application.
The in considering whether there is “any other” relevant matter” the Tribunal has considered the Departmental guidelines relating to the “genuine intention to stay temporarily in Australia”.
The Tribunal finds that he applicant has, from time to time, found paid work on an informal basis and finds that this may tempt him to stay. This consideration weighs against the application.
The Tribunal has regard to the consistency and credibility of the information provided by the applicant. The Tribunal notes that the applicant appears to have been delaying treatment for a range of conditions. He has had a range of diagnoses but, despite his insistence that he intends to have each one treated, he has not evidently pursued treatment in such a way as to suggest that treatment is his priority rather than extending his stay in Australia.
The Tribunal notes post hearing evidence that he has arranged exercise physiology but this appears to have been organised at his request rather than having been the idea of his doctor and although he has had the first of 3 months’ treatment, that did not start until well after the hearing.
This consideration weighs against the application.
The applicant clearly has support in Australia through his sister and brother in law. This does not suggest he is motivated to return to India and weighs against the application.
The applicant claims he came to Australia to pursue studies. He has not completed any study but has not returned. This consideration does not weigh in favour of the application.
the Tribunal has weighed all the relevant considerations and is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for of medical treatment.
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Mark O'Loughlin
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).

[2023] AATA 3559

11 October 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction