Jantinder Singh (Migration)

[2021] AATA 5648

Jantinder Singh (Migration) [2021] AATA 5648 (3 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jantinder Singh

CASE NUMBER:  1925978

HOME AFFAIRS REFERENCE(S):          BCC2019/4150595

MEMBER:Anne Grant

DATE:3 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.215 of Schedule 2 to the Regulations.

Statement made on 03 November 2021 at 12:21pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – medical treatment requirements – mental health conditions – headaches and nosebleeds – MRI scan – microhaemorrhages – genuine temporary entrant – neurological investigation required – migration history – unknowingly overstayed previous visa – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 2 September 2019 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 21 August 2019. 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 they were not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes for which the visa is granted.   

4. The applicant was invited to attend a hearing at the Tribunal on 28 September 2021.  On 17 September 2021, the applicant requested that the hearing be rescheduled to give him time to obtain documents in support of his application.  The Tribunal agreed and the hearing was rescheduled for 3 November 2021.  On 27 October 2021, the Tribunal received an email from the applicant providing documents in support of his application but in a covering letter requested that the hearing be delayed because he had been advised by his medical practitioners not to fly until he has seen a neurologist and a psychiatrist, with an appointment due in February 2022.  The Tribunal considered this request but decided that it was not appropriate to delay the application (initially lodged in 2019) any further and advised the applicant that the hearing would proceed as scheduled. 

5. The applicant appeared before the Tribunal on 3 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.   

   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 genuinely intends to stay in Australia temporarily for the purpose of obtaining medical treatment.

   Are the medical treatment requirements met?

8. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl 602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:

   ·the arrangements for treatment have been concluded

   ·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia

   ·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community

   ·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and

   ·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.

9. There is no suggestion that any of the other alternative sub criteria are relevant in this case.  On the face of the documents provided by the applicant, he was seeking treatment for mental health problems when he applied for the medical treatment visa.  He was meeting the costs of that treatment with the assistance of financial support from his family and also his health insurance.  Whilst in Australia waiting for this review to be heard, he developed headaches and nosebleeds and in October 2020 presented to Logan hospital ED where he underwent an.  He has provided the results of that MRI and it confirms that the scan was ‘normal’ but also reported microhaemorrhages.  His doctor has referred him to a neurologist and his appointment is booked in February 2022.  Delays have been caused due to specialist availability and the pandemic. 

10. I am satisfied that the applicant satisfies cl 602.212(2) of the regulations.

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

11. 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.

12. The applicant is not yet aged 40 and also there is no written report stating that he is medically unfit to depart Australia from a Medical Officer of the Commonwealth in this case.   He does not satisfy the criteria in cl602.212(6).  Accordingly, the requirement in cl 602.215 does apply.  That provides me to consider whether: 

    602.215
    (1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
    (b) whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

    (c) any other relevant matter.

    (2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

13. In support of his application, the applicant has provided several documents as follows:

    ·     Bank account balance statements for Mrs Jaspreet Kaur (the applicant’s sister in law) showing balances of $231.08 and $18,002.31 as at 20 September 2021;

    ·     Statutory Declaration from Santinder Singh and Jaspreet Kaur (the applicant’s brother and sister in law) declaring that they have the means and intention to support him in Australia;

    ·     Indian Affidavit attested on 20 September 2021 from applicant’s father Masjinder Singh declaring that he is the owner of land and a residential building which will be inherited by the applicant in the applicant’s home state of Punjab, India;

    ·     Tickets and boarding passes for the applicant’s wife Mrs Manisha Ajrawat and son Gurpavit Singh leaving Australia on 10 February 2020;

    ·     His parents’ passports and identification cards;

    ·     Beenleigh Medical Centre medical certificate dated 20 October 2021 from Dr Vishnu Vasudevan which indicates that the applicant is awaiting a neurologist appointment and has been recommended not to fly until he is seen by a neurologist on 25 February 2022;

    ·     Letter of referral to Dr Swapna Sebastian at Neurocare for opinion and management for headache and nosebleeds.

    ·     Beenleigh Medical Centre medical certificate dated 21 September 2021 from Dr Vishnu Vasudevan which indicates that the applicant is receiving treatment for a mood disorder for which he has been referred to a Psychiatrist.  Dr Vasudevan again states that he has advised him not to fly until he has seen a psychiatrist and stabilised with treatment;

    ·     Logan Hospital Emergency Department statement 9 October 2020.  This reports that the applicant presented to the ED of the hospital on that date with headache and an MRI of the head was ‘abnormal’.     The report notes that an MRI with the GP had showed three microhaemorrhages in the left cerebral hemisphere, and that the applicant describes headaches once or twice a fortnight with no visual or neurological symptoms.   

    ·     MRI-Brain scan 6 October 2020  report with findings:

    No foci of restricted diffusion.  There are two microhaemorrhages in the left paramedian frontal lobe and a further microhaemorrhages in the peri-Sylvian left temporal lobe.  The CSF spaces and sulcal pattern are within normal limits.  No white matter abnormality.  No mass lesion or extra-axial collection.  Non-dilated ventricles.  Brainstem, cerebellum and craniocervical junction are normal.  Petrous mastoids and paranasal sinuses are clear.  The conclusion:  No intracranial mass lesion.  There are three microhaemorrhages in the left cerebral hemisphere as described and a follow up MRI should be considered in 12 twelve months.

    ·     Applicant’s Indian passport valid to 20 July 2027;

    ·     Applicant’s Standard Visitor Cover health insurance details;

    ·     Receipts for psychologist report at Heal the Mind;

    ·     Prescription for Perindo tablets (blood pressure medication)

    ·     Pathology request for bloodwork 27 September 2020;

    ·     Referral letter to Dr Alam, (Psychiatrist) 7 Setpember 2021 which reports that the applicant is being referred for low mood, low motivation, low energy level, feeling depressed, missing his family who are stuck in India.

    ·     Psychology report dated 10 May 2019 from Heal the Mind at Kuraby Wellness Centre which confirms that the applicant had significant symptoms of anxiety and depression.  The report states that it is understood that one of the main reasons underlying his mental health condition ‘seem to be the result of past traumas’ and he is also having difficulties with his current visa status. The report notes that his wife was granted a student visa following a joint application but his was refused. The psychologist also notes:  “Jantinder says he loves Australia; it’s the only place he considers home.  He explains how important it is for him to stay here and make a contribution to the Australian society.”

14. At hearing, the applicant was asked about his reasons for overstaying his visa.  He explained that it was a misunderstanding.  He and his wife were both refused a Student visa and applied for review (or thought they did) at the AAT.  It later transpired that the agent who lodged the application did not include the applicant.  He only discovered it when his wife’s application at the AAT was successful and he wasn’t issued a visa when she received hers.  The Tribunal has looked at the applicant’s wife’s application history and notes the following: 

    ·The applications for a visa were lodged on 23 March 2018;

    ·They were refused by the Department on 24 September 2018 because the applicant’s wife had not provided proof of appropriate health insurance by the time required;

    ·The letter notifying the applicant’s wife also confirmed that the applicant had been refused a visa at the same time;

    ·An application for review was sought by the applicant’s wife at the AAT on 3 October 2018 and a decision made on 4 January 2019. 

15. Based on this information, I accept as reliable the applicant’s explanation for being in Australia without a visa and that he mistakenly understood that he had an appropriate visa whilst waiting for the Tribunal review, and that he did not knowingly overstay his visa.  In these circumstances, I do not intend to give any adverse weight to the fact that the applicant remained in Australia without a visa prior to the application for the medical treatment visa.

16. I also accept that the applicant suffers from depression and has sought (and continues to seek) treatment in Australia for that condition, though that treatment has not been continuous, in part due to the onset of a new health condition and also as a result of the pandemic. 

17. I accept that in October 2020, the applicant presented to his doctor with persistent migraine headaches and nosebleeds and an MRI revealed three microhaemorrhages.  I accept that he continues to suffer headaches and (as recommended by the MRI service) he is awaiting a follow up MRI and neurologist appointment, booked for 25 February 2021.  I accept that the applicant has been advised not to fly until his scans are reviewed by a neurologist.  The applicant believes he may need surgery and would prefer to get that surgery in Australia; but as noted there is no suggestion in the material before me that this is even being considered.  Nonetheless, I am satisfied that the applicant requires some neurological investigation of an ongoing health condition which genuinely impacts on his capacity to leave the country at this time.  He told me that he last had a headache on the weekend before the hearing and he still has them and nosebleeds quite often. 

18. The applicant confirmed that after he has been treated and leaves Australia, he plans to get a visa to return to Australia so that he can be with his wife and son; but he would make that application offshore as he believes that he meets the legal criteria.  His wife and son have actually been in India since February 2020 and are about to return to Australia.  They have been unable to return due to Covid19 restrictions.

19. The applicant noted that he has parents living in India and an uncle with whom he ran a café before coming to Australia.  That business is still operating and he could, if he needed to, return to work there.  He is the sole beneficiary of his parent’s property – a farm plot and a home.  This is because his only brother is in Australia and an Australian citizen.  His father has stated as much in the declaration that he sent in.

20. The applicant confirmed that he would leave once his treatment has been concluded and he is cleared to fly, because he wants to apply for a new visa offshore so that he can join his wife and son legally.  His wife still has two years to go on her course.  He agrees that he wants to be in Australia for now but stated that he would comply with any visa conditions to safeguard his application off shore for a new visa once he left.

21. The applicant was referred to the psychologists’ notes that he considers Australia home and wants to contribute here.  He said that was true (and is true) but he would only do so as a legal visa holder.  He reiterated that once he had finished the treatment, he would depart Australia and apply for a visa offshore. 

22. The applicant was referred to the suggestion in the report that he had ‘past trauma’ and asked what this referred to.  Had he suffered harm in India in the past?  He said no, he wasn’t sure what that was referring to.  He said he suffered poor mental health and those problems arose when he was in Australia, but he did not know about any other trauma.  The applicant also confirmed that he could get treatment in India for depression and possibly for any neurological condition; but he prefers to be treated here where it is covered by his insurance and also where he believes he will get better treatment.  

23. There are factors which provide the applicant with an incentive to return to India – his parents, the family property, and the availability of employment.  There are also factors which provide the applicant with an incentive to remain in Australia; namely his brother and the (albeit temporary) presence in Australia of his wife and son, once they return. 

24. Having discussed his evidence and migration history with the applicant, I found him to be a credible and reliable witness.  I consider that he is well aware that failing to comply with the conditions of the visa, if granted, would reflect poorly on any future application for a student or work visa and that he has a genuine intention to leave once he has been medically cleared to do so and then apply off shore for a visa to enable him to return to Australia to be with his wife and son whilst she completes her studies.  I have also noted that the reason for refusal of the student visas (which triggered him being unwittingly without a visa) was related to the non provision of information which has since been provided and I accept that the review of that decision was mistakenly restricted only to his wife’s application at the Tribunal, without the applicant’s knowledge. As noted earlier, I give no weight in those circumstances to the applicant having overstayed his visa whilst that review process was underway.

25. I have also given some consideration to the complications to migration caused by the COVID19 pandemic and the impact that his wife and son’s absence has had on the applicant’s mental health and also on the treatment he has been able to receive for each of his conditions.    

26. Having considered the information and evidence before me as a whole, I am satisfied that the applicant would abide by the conditions of the visa if granted and that he genuinely intends to stay in Australia temporarily to pursue medical treatment for both depression and recurrent headaches and nosebleed.  On that basis, I find that the cl 602.215 is met.

27. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

    decision

28. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

    ·cl 602.215 of Schedule 2 to the Regulations.

    Anne Grant
    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).