Choksi (Migration)

[2022] AATA 1799

Choksi (Migration) [2022] AATA 1799 (21 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adarsh Jayeshkumar Choksi

REPRESENTATIVE:  Mr Dilpreet Singh (MARN: 0956305)

CASE NUMBER:  2100087

HOME AFFAIRS REFERENCE(S):          BCC2020/2745402

MEMBER:Nora Lamont

DATE:21 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 21 March 2022 at 12:30pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant doesn’t have a genuine intention to stay temporarily for the visa purpose – no evidence provided to substantiate any incentive to depart Australia – unlawful for three years – applicant has not provided any evidence about the medical treatment – maintain ongoing residence in Australia – 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 December 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).

2. The applicant applied for the visa on 2 December 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).

3. The delegate refused to grant the applicant the visa because in the online application the applicant is required to truthfully disclose migration history. The applicant was asked if they have ever had a visa for Australia or any other country refused or cancelled. The applicant declared in their application that they have never had a visa refused or cancelled. To the contrary, Departmental systems show that on 24 November 2017, the applicant's Student (subclass 573) visa was cancelled. Furthermore, the applicant did not comply with visa conditions as they did not depart and have remained in Australia as an Unlawful Non-Citizen for almost three years since that date. A response period of seven days was afforded to the applicant to provide a response to the Natural Justice letter regarding their Migration History. A response was received that consisted of a statutory declaration from t e applicant. The applicant explained their reason for non-disclosure, and this has been considered. There was no evidence provided to substantiate any incentive to depart Australia.[1]

   [1] IMMI Refusal Notification with Decision Record - BCC2020 2745402 - 45642667 - CHOKSI, ADARSH JAYESHKUMAR.PDF.

4. The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The applicant’s representative was not present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 needs medical treatment in Australia and if the applicant intends a temporary stay.

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

8. 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.

9. The applicant has not met the requirements for being medically unfit to depart Australia. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

10. In the present case, the visa applicant seeks the visa for the purposes of getting treatment for back pain. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

    Background

11. The applicant first arrived in Australia on a student visa in 2015 and returned to India in 2016 for three or four months and skipped enrolment. His mother and sister live in the USA and his father lives in India.

12. At the hearing the applicant stated he did not know that his visa had been cancelled and when he did find out the 28 days had already lapsed. I asked if why he was unlawful for three years and he said he didn’t know that his visa was cancelled as he thought his visa was going to expire. I asked him why he put down on his Medical Treatment Visa application that he never had a visa cancelled and he said it must have been a mistake. He told me he fell behind at school tried to get some help and changed schools.

13. The only medical document before the Tribunal is a Form 1507 that was attached to his application to the Department which says for his care: “simple analgesic and back care exercises”.[2] There is no other medical documentation before me. The applicant said he had a fall and jerked his back, and he cannot sit for long periods and he falls easily. He showed me his hands and they had bandages on them as he said he had fallen. He said he takes pain killers and showed me the pills he was taking including Tramadol, Panadol Forte, and Diclofenac (Voltaren). He said he had CT Scan of his spine done and I asked him to forward it to my office. I asked him to get it to me by 18 March which was a 10-day period and to date no CT Scan results have been forwarded to the Tribunal.

    [2] CHOKSI, ADARSH JAYESHKUMAR, 06FEB1995-Form 1507 Evidence of intended medical treatment-MTV-AP-602.PDF

14. The applicant said he has “matured” in Australia and he is attached to Australia. He also wishes to continue his studies Australia.

15. 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. I note that the applicant did not comply with the conditions on his student visa, and it was cancelled. He then was unlawful for a period of three years. Given his history I am not satisfied he will comply with the conditions of his Medical Treatment Visa.

16. I accept that the applicant may have some back pain, but in the absence of any CT Scans or further medical documentation I am not satisfied he requires a Medical Treatment Visa. This combined with his lengthy period of unlawfulness and his own oral evidence that he wishes to stay in Australia does not satisfy me that he intends to depart Australia and I am therefore not satisfied the applicant meets cl. 600.215 of the Migration Regulations.

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

18. 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

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

    Nora Lamont
    Member