Dhaliwal (Migration)

[2023] AATA 3623

Dhaliwal (Migration) [2023] AATA 3623 (5 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kulwinder Kaur Dhaliwal

CASE NUMBER:  2305051

HOME AFFAIRS REFERENCE(S):          BCC2023/1223097

MEMBER:David Crawshay

DATE:5 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2023 at 10:00am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – unit to depart – period of unlawful residence – sufficient funds – lengthy stay in Australia – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 57, 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215, 602.314, 602.611

CASES

Chowdhury v MIMIA [2005] FMCA 1243       

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 24 March 2023 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 18 February 2023. 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 the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, and that she was not “unit to depart” as that term is understood under cl.602.212(6) for the purposes of cl.602.215(1).

4. On 15 September 2023, the applicant was invited to give evidence and present arguments in a video hearing before the Tribunal on 5 October 2023. The hearing was to be conducted as a joint hearing with the matters of her husband, Mr Baljinder Singh Dhaliwal, and their son, Master Kambir Singh Dhaliwal, who are the subjects of separate applications for review of refusals of Subclass 602 visas (matter numbers 2305052 and 2305053 respectively). Their visa applications were refused by the Department because they were found not to be support persons of the applicant under cl.602.212(4). Decisions in respect of them have been made separately.

5. On 1 October 2023, the applicant wrote to the Tribunal by email to seek a postponement of the hearing because she claimed to be sick with flu and an ear infection. On 2 October 2023, the Tribunal responded by refusing this request on the basis that the applicant had not provided any documentary evidence to show that she or the other applicants were unable to attend the hearing.

6. On 3 October 2023, the applicant wrote to the Tribunal by email in the following relevant terms:

   My name is kulwinder kaur dhaliwal. My case number is 2305051. My husband name is Baljinder singh dhaliwal. His case number 2305052 and my son name is karnbir singh dhaliwal. We have combined hearing with you on 5th October 2023, But sorry we can not attend that hearing. Please give your decision based on the information. [errors in original]

7. Based on the contents of the applicant’s email of 3 October 2023, the Tribunal cancelled the hearing in respect of her matter and has chosen to determine her matter on the information available to it without taking further steps to obtain further information. It considers that it is reasonable to do so in light of the applicant’s lack of substantive engagement with the Tribunal since she submitted her application for review form and associated documents in April 2023, including in response to the hearing invite dated 15 September 2023 which requested her to provide “all documents you intend to rely on to support your case”. It has also considered that this follows an earlier instance of non-engagement at the Department stage, whereby the applicant did not respond to a s.57 “natural justice” letter sent by the Department on 20 February 2023 seeking information to substantiate that she genuinely intended to leave Australia at the end of her medical treatment plan. In these circumstances, the Tribunal finds that the applicant has already been afforded a reasonable opportunity to provide information and that, furthermore, she is unlikely to provide further information even if requested.

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

   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 for the purpose for which the visa is granted.

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

10. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In this case, the purpose for which the visa is to be granted is to receive medication for migraines according to the visa application form dated 18 February 2023, and the approximate dates the applicant will be under medical care are from 20 February to 19 May 2023. 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 visas, 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).

    Is the applicant unfit to depart Australia?

11. Clause 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.

12. The evidence in front of the Tribunal, including a passport, shows that the applicant was born in 1981. Therefore, she has not turned 50 which is one of the cumulative requirements under cl.602.212(6). Therefore, cl.602.212(6) is not met and the applicant does not meet the exception in cl.602.215(2). She must instead meet cl.602.215(1).

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

13. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. Department movement records show that she has been on a number of bridging visas since her last substantive visa ceased in July 2010, including several Bridging A and B visas up until February 2014 when she was granted the first of several Bridging E visas.

14. In the case of most of these visas, the applicant has had a “no study” condition applied, along with other conditions relating to giving notice to the Department of new addresses and maintaining health insurance. There is no information other than that she complied with these conditions.

15. However, the Tribunal has had particular regard to a Bridging E visa granted to the applicant on 13 October 2014, which had condition 8512 placed on it, among other conditions. Condition 8512 requires a visa-holder to leave Australia by a date specified by the Minister. As the visa ceased on 26 October 2014, the proposed date would have been on or before that time. However, and despite this condition being placed on the visa, the applicant remained in Australia beyond this date (and in fact did not regularise her status thereafter for more than three years). Based on this evidence, the Tribunal finds that the applicant has breached this condition of her visa. The question is now whether the applicant has complied substantially with the condition notwithstanding this breach.

16. The Tribunal has considered the information in front of it and specifically the significance of the breach of the condition by reference to the purpose for which the visa was granted.[1] In this regard, it has considered that a Bridging E visa offers an applicant the chance to remain in Australia temporarily while certain processes take place – such as merits or judicial review, or Ministerial intervention – or for the purposes of making acceptable arrangements to depart Australia. According to the delegate’s decision, an outcome was reached on 23 September 2014 regarding the applicant’s claim for Ministerial intervention – being “not considered”. According to the delegate’s decision, the next event in the applicant’s immigration history was an application for a [permanent] visa in September 2017. Given these circumstances, and specifically given the fact that the Bridging E visa carrying condition 8512 followed the finalisation of her request for Ministerial intervention and was almost three years before her application for [a permanent visa], the Tribunal finds it reasonable to conclude that the Bridging E visa granted to the applicant on 13 October 2014 was likely for the express purpose of enabling her to leave Australia following the outcome of her request for Ministerial intervention. As this was its intended purpose, the applicant’s breach of condition 8512 was essentially a repudiation of the visa itself.

    [1] Chowdhury v MIMIA [2005] FMCA 1243, [37] (Barnes FM, 6 September 2005).

17. Under these circumstances, the Tribunal finds that the applicant did not substantially comply with this condition of a bridging visa she held. Furthermore, although the breach occurred almost nine years ago, the Tribunal accords it substantial weight of an adverse nature as it is indicative of the applicant’s overall conduct – which is explored in further detail below.

18. The Tribunal has considered if the applicant intends to comply with the conditions to which a Subclass 602 visa would be subject. There is no evidence to show that she would satisfy cl.602.611(1) or cl.602.611(2), and specifically the Tribunal notes that she is unable to do so as she is not currently the holder of any of the visas specified in cl.602.212(7)(c) or cl.602.314(1). Therefore, the Tribunal considers that conditions 8101 (“no work”) and 8201 (“no study or training for more than three months”) would be imposed on any Subclass 602 visa granted to her.

19. The Tribunal deals firstly with condition 8101 relating to no work. It notes that the applicant stated in her application form dated 18 February 2023 that her stay in Australia will be self-funded and that she has “sufficient funds”. However, no information was provided to substantiate these claims including no evidence of funds in the applicant’s bank accounts or those of her husband. The Tribunal has considered that the medications indicated for the applicant’s claimed condition – being Maxalt melts and sandomigran – are not particularly expensive and may not, by themselves, require a significant outlay of funds.[2] However, it has also considered that these treatment costs would be in addition to the living costs that she and her family (namely, her husband and two children) will incur during their stay in Australia. No information has been provided to show that the applicant and her family receive financial support from other sources or have their costs defrayed for expenses such as rent. In the absence of information that shows the current financial position of the applicant and/or her husband, or information that demonstrates that she has access to financial support from other sources, the Tribunal is not satisfied that she will refrain from working as a means to support her family.

    [2] The private prescription price for Maxalt 10mg Wafers is $20 and sandomigran $15.99: >

    Based on the above findings, the Tribunal is not satisfied that the applicant will comply with condition 8101 relating to no work. This aspect is given adverse weight.

20. In relation to condition 8201 relating to no study or training for more than three months, the Tribunal finds that the applicant will comply with this condition. This aspect is given some favourable weight.

21. The Tribunal has considered any other relevant matter. It has considered that the applicant has been resident in Australia since July 2008 according to Department movement records, having only been overseas on four occasions for short periods of not more than two months-at-a-time since first arriving here as the holder of a student visa. It has considered that, during this time, she has applied for no less than five visas not including the present visa. These are:

    ·a Subclass 485 visa which was refused by the Department, affirmed by the Tribunal (differently-constituted), and withdrawn from judicial review;

    ·a Subclass 457 visa which was withdrawn at the Department stage before a claim of Ministerial intervention was made but not considered;;

    ·a Subclass 866 visa which was refused by the Department and then found not to have jurisdiction by the Tribunal (differently-constituted) because the timeframe for review was not met;

    ·a first Subclass 602 visa which was refused by the Department and affirmed by the Tribunal (differently-constituted); and

    ·a second Subclass 602 visa which was refused by the Department and affirmed by the Tribunal (differently-constituted);

22. The Tribunal has also considered that the applicant remained in Australia as an unlawful non-citizen for over three years from the time that her Bridging E visa ceased in October 2014 until her next Bridging E visa commenced in November 2017. It has considered that her last-held substantive visa, a student visa that she held upon first entering the country, ceased in July 2010 – or over 13 years ago.

23. The Tribunal has not examined the merits of the applicant’s [permanent visa application], or whether she still seeks [to pursue it] in Australia based on the claims made in that matter. Although this may ultimately reveal an intention to reside in Australia [permanently], it notes that [that application] is a right which was open to her under Australia’s migration law, as are the other visa options that she has taken up – options that have invariably ended up with her taking her matter to the Tribunal, the courts or the Minister. However, the Tribunal has considered that the applicant’s migration history taken as a whole reveals a willingness on her part to remain in Australia beyond the validity of any one visa, especially after having been told on one occasion to leave and then having spent an extended period of time as an unlawful non-citizen. Indeed, the Tribunal regards this present visa application as another manifestation of this willingness. It accords significant adverse weight to this aspect.

24. Finally, the Tribunal has considered the medical condition from which the applicant claims to be suffering. In this regard, it has considered that she claimed to be suffering from migraines for which she was taking two medications. However, the applicant has not provided sufficient information to demonstrate that such treatment in the form of these medications has been undertaken or, in the alternative, that she would not be able to receive these medications in India. As a result, the Tribunal is not satisfied that the applicant is required to remain in Australia for treatment for her claimed condition.

    CONCLUSION

25. The Tribunal has considered and weighed the evidence in front of it when assessing whether the applicant has the requisite intention according to cl.602.215(1). It acknowledges her claim to require treatment in the form of medication for migraines, although for the reasons above it is not satisfied that she is required to remain in Australia for this treatment. It accepts and gives weight to evidence that the applicant has complied with most of the conditions of her previous bridging visas but gives more weight to the fact that she breached condition 8512 by not leaving Australia in 2014. It accepts and gives weight to information showing that the applicant intends to comply with condition 8201 relating to no study or training for more-than-three months, although it accords adverse weight to a finding that she does not intend to comply with condition 8101 relating to no work. Finally, it gives significant adverse weight to other evidence that it considers is indicative of the applicant not having a genuine intention to stay temporarily, such as her extensive migration history and conduct. Specifically, it gives adverse weight to the fact that she remained onshore for over three years as an unlawful non-citizen following the cessation of her Bridging E visa in 2014.

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

27. 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

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

    David Crawshay
    Member