Fathima (Migration)

Fathima (Migration) [2021] AATA 2526 (20 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Firdouse Fathima
CASE NUMBER:  1835174
HOME AFFAIRS REFERENCE(S):          BCC2018/4966907
MEMBER:Moira Brophy
DATE:20 May 2021
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 20 May 2021 at 2:35pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – arrival as student – resided in Australia since 2010 without substantive visa – returned to India to access affordable medical treatment – applicant now in India – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, Schedule 2, cls 602.215, 602.212(6)
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 22 November 2018 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 7 November 2018. 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 delegate was not satisfied the applicant genuinely intended to remain in Australia for the purposes of medical treatment and not for the purpose of residing permanently in Australia.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by either telephone or video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant gave evidence to the Tribunal at a telephone conference on 19 May 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
Background
The applicant is a citizen of India and is currently 36 years old. At the time of the application, she was living with her husband and child in Australia.
On 14 March 2010, the applicant arrived in Australia as the holder of a Student (Subclass 573) visa. The visa ceased on 2 March 2012. On 2 March 2012, the applicant lodged an application for a Student (Subclass 573) visa. The visa was granted on 12 July 2012 and ceased on 30 September 2014. On 30 September 2014, the applicant lodged an application for a Student (Subclass 573) visa. On 4 December 2014, the application for a Student (Subclass 573) visa was refused by a delegate of the Department of Home Affairs on the basis that the applicant did not meet cl 573.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) as she had not undertaken any study for a period of 15 months (from 21 June 2013 until the application for a student visa lodged on 30 September 2014). On 17 December 2014, the applicant subsequently lodged an application for merits review of the delegate’s decision at the Migration Review Tribunal now the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed the application for review on 30 April 2015. The Tribunal found that the applicant did not provide any information to demonstrate that she was a genuine student and it was not satisfied that she met the genuine temporary entrant criterion under cl 572.223(1)(a) of the Migration Regulations 1994 (Cth), nor the requirements under the other subclasses of the Student (Class TU) visa. On 19 May 2015, the applicant lodged an appeal for judicial review of the Tribunal’s decision with the Federal Court of Australia. On 20 November 2017, the Federal Court found in favour of the Minister for Immigration. On 8 December 2017, the applicant lodged a further appeal with the Full Federal Court of Australia which determined in favour of the Minister for Immigration on 3 July 2018. The applicant then appealed the decision in the High Court on 30 July 2018 and a decision was made on 17 October 2018 in favour of the Minister for Immigration. During the time the applicant had been in Australia, she had been unlawful for one day.
At the time of lodging her application for a medical treatment visa, the applicant indicated that she wished to include the following as her support people and members of her family unit as they each play a significant role to support the applicant and provide for her in her daily life to make ends meet for the family. Those persons were her husband Mr Zaheer Ahmed Mohammad, DOB 8 September 1977, and her son Mohammad Amaan Ahmed, DOB 14 April 2014.
On 20 November 2020 and on 29 April 2021, the Tribunal wrote to the applicant under s 359A setting out her immigration history as detailed in paragraph 2. On each occasion, the Tribunal invited the applicant to respond to the information and explained to the applicant the relevance of the information to her review because it indicated to the Tribunal the applicant was not seeking to stay in Australia on a temporary basis and accordingly the Tribunal may rely on the information in affirming the decision under review. On each occasion, the applicant was given time to respond and advised that a failure to respond may mean the Tribunal would determine the matter without taking further action. In those circumstances, the applicant would lose her entitlement to a hearing.
The applicant did not respond to the matters raised by the Tribunal. The Tribunal notes that after the letter dated 20 November 2020, the applicant sought additional time to respond to the matters raised, which was granted.
Given the applicant was not onshore and the potential impacts of COVID-19, the Tribunal determined that although the applicant had not responded to the communications of the Tribunal, the hearing as set down would proceed.
To satisfy the requirements for the grant of a medical treatment visa, the applicant is required to demonstrate that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The applicant submitted an Evidence of intended medical treatment form 1507 completed by Dr Sulojini Balakrishnan requiring treatment for medical condition URTI, and the treatment being prescribed was Rulide tablets. The period requested for the treatment was 2 November 2018 to 2 November 2020.
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. The issue in this case is whether the applicant has provided sufficient information for the Tribunal to be satisfied she meets the criteria for the visa and whether the Tribunal is satisfied the applicant genuinely is intending to stay in Australia only for the purposes of treatment.
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).
The application form (Form 48ME) contains a series of questions which asks the applicant how long she seeks to remain in Australia (Q15), for what period will she be under medical care (Q17), to describe the medical treatment she has arranged (Q18), and to give details of her doctor/hospital in her home country and in Australia (Q19 and Q20) and the funding for her stay (Q26).
At the time of application, the applicant stated she wished to remain in Australia for the period from 2 November 2018 to 2 November 2020 to obtain medical treatment from Dr Sulojini Balakrishnan. The original form 1507 submitted with the application and completed by the treating doctor Dr Sulojini Balakrishnan was dated 30 October 2018. Dr Balakrishnan opined the applicant had ‘URTI’ and that this condition would require ongoing medication and treatment. In her application, the applicant stated she wished to remain in Australia for 24 months for medical treatment.
At the time of hearing, the applicant was living in India. She had returned to India with her husband and son in January 2020 and was then not able to return to Australia. Her bridging visa ceased on 13 April 2020. The applicant said that she had last seen the doctor in Australia prior to her return to India. She had found the medical treatment in Australia to be very expensive and so she had sought further treatment when she returned to India where the costs were less prohibitive. She said she was now much better and no longer required medical treatment.
When put to the applicant that she had been here for the extended time period she had initially sought, she agreed, and when asked whether there was any treatment plan in place for beyond that time, she said there was not but she was still seeking the visa. She said her son had been born in Australia.
The Tribunal raised as an issue with the applicant its concerns that her immigration history, including the fact that she had lived in Australia since March 2010 without a substantive visa, and her history tended to indicate that she applied for the medical treatment visa to extend her stay in Australia and not because she intended seeking medical treatment in Australia. The applicant agreed it had previously been her intention to seek to stay in Australia, but she wanted her stay in Australia to be lawful. The Tribunal considered this submission that the intention of the applicant had changed but in light of her immigration history it was not persuaded her intention had in fact changed. It was put to her that a medical treatment visa was a short‑term visa for a specific purpose and that may not be an appropriate visa for her given her evidence she no longer required medical treatment.
The applicant has provided to the Tribunal a copy of the Department’s decision and reasons.
In considering the issue of the applicant’s intention, the Tribunal was mindful that the applicant’s husband and son had been with her in Australia, albeit on bridging visas. The Tribunal accepts the son of the applicant was born in Australia. The Tribunal further finds that at the time of his birth, his mother was not the holder of a substantive visa. When asked about her family in India, the applicant said that she and her family had returned because her father was unwell, but he has since recovered. She said they had retained their home in India when they came to Australia and she and her husband and their son were now living in that property.
Accordingly, after taking into account the evidence on file and the evidence given at the time of hearing, the Tribunal finds it is not satisfied that the applicant meets the requirements for the visa. The Tribunal has considered the oral testimony of the applicant given at the time of hearing, but on the evidence considered in its totality the Tribunal is not persuaded that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
Given the above findings, cl 602.215(1) is not met.
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. In assessing intention, the Tribunal has taken into account the fact the applicant has substantially complied with her visa conditions in the past but has attached greater weight to her immigration history. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6).
Given the applicant recently returned to India and given her stated date of birth, there is no evidence cl 602.212(6) applies.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Moira Brophy
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).

[2021] AATA 2526

20 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Appeal

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice