Kamboj (Migration)

[2022] AATA 1656

Kamboj (Migration) [2022] AATA 1656 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspal Singh Kamboj

REPRESENTATIVE:  Mr James Hammond (MARN: 0636764)

CASE NUMBER:  2007255

HOME AFFAIRS REFERENCE(S):          BCC2020/571426

MEMBER:Naomi Schmitz

DATE:18 March 2022

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 18 March 2022 at 3:35pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – outstanding debt to the Commonwealth – an unlawful non-citizen –adverse migration history– maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 359, 360, 363

Migration Regulations 1994, Schedule 2, cls 602.212, 602.217

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 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 25 February 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. On 30 March 2020 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.

4. On 19 April 2020 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicant was represented in relation to the review.

5. On 4 February 2022 the Tribunal wrote to the applicant for three reasons.

6. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:30am on 22 February 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant. The invitation included a ‘Response to hearing invitation form’ which the applicant was directed to complete and return to the Tribunal within seven days.

7. The second reason was to invite the applicant under s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review, namely the applicant’s migration record outlined in the delegate’s decision record referred to below. The notice stated that the applicant’s migration history suggests that the applicant wishes to stay permanently in Australia.

8. The invitation to comment or respond to information advised that if the applicant did not comment on or respond to the information in writing by 18 February 2022, the Tribunal hearing scheduled on 22 February 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act.

9. The third reason was to request under s.359(2) of the Act that the applicant provide the Tribunal with information to address the following:

   ·Immigration records demonstrate that you arrived in Australia on a Visitor visa (subclass 456) on 23 July 2006 which was valid until 23 October 2006. On 30 August 2006 you applied for a [permanent visa] which was refused on 16 September 2006. Immigration records disclose that you have remained in Australia since that time. Why did you not depart Australia after this date?

   ·In your medical treatment visa application, you claimed that you would like to remain in Australia until 25 February 2021 to seek medical treatment for hypertension right shoulder pain. Immigration records demonstrate that you have remained in Australia since that time. Why have you remained in Australia since 25 February 2021?

   ·The Tribunal does not have current medical evidence concerning your medical treatment. Please provide a current medical report detailing your medical condition(s) including:

   oWhen you were first diagnosed with those condition(s);

   oWhat your current medical treatment for those condition(s) involves;

   oThe prognosis of your medical condition(s); and

   oWhen does the medical treatment you have undertaken end or when is it due to end?

   ·Noting that you have been in Australia since 23 July 2006 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

10. The request for information advised the applicant that if the information was not provided in writing by 18 February 2022, the Tribunal hearing scheduled on 11 February 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act.

11. On 7 February 2022 the applicant was further invited pursuant to s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review.

    Records show that you have an outstanding debt to the Commonwealth through the courts as follows. Customer 161580 $14,600 4 unsuccessful appeals (SYG248/2007, NSD1034/2007,MLG1529/2012, MLG363/2017). The client has not made any contact with Debtors to discuss repayment arrangements.

12. The invitation advised that this information is relevant to the review because the outstanding debt to the Commonwealth would be a reason, or part of the reason for affirming the decision under review because cl. 602.217(1) of the Migration Regulations 1994 (the Regulations) requires that the applicant satisfy Public Interest Criterion 4004. This requires that the applicant not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. If an applicant does not satisfy cl. 602.217(1) of the Regulations the applicant cannot be granted the visa.

13. On 18 February at 9:37pm, the applicant’s representative emailed the Tribunal and returned a completed ‘Response to hearing invitation’ form signed on 18 February 2022 confirming the applicant’s attendance at the hearing. The email also requested that the hearing be adjourned. On 21 February 2022 the Tribunal advised that it had considered the applicant’s request carefully, but had decided not to postpone the hearing. No explanation was provided by the representative for the request and it was not supported by any independent evidence. The Tribunal further noted that it had been approximately two years since the applicant had filed his application for a Medical Treatment visa (Subclass 602) and therefore had ample time to collate any materials in support of his application for review.

14. On 21 February 2022 at 10:36am the applicant’s representative requested an extension of time to comment on or respond to the information contained in the s.359A and s.359(2) notice. On 21 February 2022 the Tribunal refused the application. The request for an extension was not supported by any credible or independent evidence. The Tribunal also considered that as approximately two years had lapsed since the applicant had lodged his Medical Treatment visa (Subclass 602), that the applicant had sufficient opportunity to collate material in support of his application for review.

15. The applicant appeared before the Tribunal on 22 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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?

18. 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.

19. The applicant is currently residing in Australia. Documents provided by the applicant show he has turned 50, being born on 6 March 1967 and thus currently 55 years of age. The applicant has applied for three permanent visas while in Australia, [which] were all refused. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    BACKGROUND

20. The applicant identified that he was in Australia residing in Shepparton. The applicant is a citizen of India, born in Udham Singh Nagar, Uttarakhand, India. In the applicant’s visa application he claimed he was married, but that he had no relatives in Australia. He claimed that his stay would be self-funded. He disclosed that he had held and currently holds a bridging visa and has had a previous visa refused (type not identified). At the hearing he gave evidence of unsuccessfully applying for a [permanent visa].

21. In the applicant’s medical treatment visa application, he wrote the purpose of his stay in Australia was medical treatment and that he would be under medical care from 25 February 2020 until 25 February 2021. Attached to the visa application was a Form 1507 which Dr Nawab Khalid of the Sana Medical Centre signed on 20 February 2020. It detailed the medical condition requiring treatment as ‘hypertension right shoulder pain’. The treatment information was ‘coveram and celebrex’. No other medical information was provided with the application or in connection with the review.

22. The delegate decision record detailed the applicant’s migration history.

23. On 23 July 2006 the applicant first arrived in Australia on a Visitor visa (subclass 456). The applicant has not departed Australia since.

24. On 30 August 2006 the applicant lodged an application for a [permanent visa] which was refused on 16 September 2006. The applicant sought a review of the decision, including an appeal to the Federal Court, which resulted in a Minister win on 18 May 2007.

25. On 5 September 2007, pursuant to s. 417 of the Migration Act, the applicant sought Ministerial Intervention which was determined no power on 19 September 2007.

26. On 15 June 2012, the applicant lodged an application for a [permanent] visa which was determined as section 48 barred on 18 July 2012.

27. On 27 November 2012, pursuant to s.417 of the Migration Act, the applicant sought Ministerial Intervention which was determined no power on 29 November 2012.

28. On 29 January 2013, pursuant to s.417 of the Migration Act, the applicant sought Ministerial Intervention which was determined no power on 6 February 2013.

29. On 16 August 2013, the applicant lodged a [permanent] visa which refused on 25 September 2014.

30. The applicant subsequently sought review of the decision, including to the High Court of Australia which resulted in a Minister win on 5 February 2020.

31. On 25 February 2020 the applicant lodged an application for a Medical Treatment (subclass 602) visa.

32. During the applicant’s time in Australia, the applicant has been an unlawful non-citizen for over two years, three months and 14 days.

33. At the hearing the applicant was asked what family he had in Australia. The applicant stated he had no family or relatives in Australia and that they all resided in India. The applicant gave evidence that he was not involved in any intimate relationship in Australia. 

34. The applicant gave evidence that he had been unable to receive any medical treatment and had no future medical treatment arrangements, including for his shoulder, as he had no work rights and therefore no money to pay for medical treatment ‘how can I get treatment if there is no money and can’t work’. The applicant claimed he takes prescription pain killers to manage his shoulder pain.

35. The Tribunal Member asked why the applicant could not receive medical treatment in India, including purchasing medication (painkillers). The applicant claimed he could not return to India as it was unsafe. He referred to a previous incident in 2004, where he alleged he was=] assaulted and sustained multiple injuries and came to Australia ‘to save my life’.

36. The Tribunal Member asked the applicant why he had remained in Australia despite writing in his application that he wanted to remain in Australia until 25 February 2021 for medical treatment. The applicant stated he had not returned to India due to it being unsafe. He referred to losing his [permanent visa] appeal and stated he applied for a medical treatment visa to avoid becoming illegal. The Tribunal Member asked the applicant what arrangements he had made to return to India given he indicated he only wanted to be in Australia until 25 February 2021. He confirmed he had made no arrangements and did not wish to return to India and stated ‘India is not my country’.

37. The Tribunal Member referred the applicant to the delegate’s decision record and s359A notice sent from the Tribunal outlining the applicant’s migration history. The Tribunal Member put to the applicant that his migration history suggested that the applicant wished to stay permanently in Australia and that he will not leave. The applicant confirmed that he wished to remain permanently in Australia.

38. The Tribunal Member asked the applicant how he was supporting himself in Australia given he had been living in Australia for approximately 16 years and the fact that his current bridging visa had a no work condition. The applicant gave evidence that he had breached his bridging visa ‘no work condition’ by working. He confirmed he was not in receipt of any government social security. He stated he is a qualified engineer and repaired people’s engines to ‘survive’, put food on his plate and pay his rent of $200 per week. The applicant confirmed he owned a motor vehicle in Australia, but had no other major assets.

39. The Tribunal Member referred to the s.359A notice and put to the applicant that he had an outstanding Commonwealth debt in the sum of $14,600 and explained the consequence of this referred to above in paragraph [12]. The applicant admitted he had an outstanding Commonwealth debt and stated that if he were allowed to work legally in Australia he would repay it.

    FINDINGS AND REASONS

40. In the present case, the applicant seeks the visa for the purposes of seeking medical treatment for ‘hypertension right shoulder pain’. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

41. On 23 July 2006, the applicant first arrived in Australia on a Visitor visa (subclass 456). Between 30 August 2006 until 16 August 2013 the applicant has applied for three [permanent visas] and unsuccessfully sought various avenues of review for these refused applications including administrative and judicial review. As noted in the delegate’s decision record, during the applicant’s time in Australia he has been an unlawful non-citizen for over two years, three months and 14 days, which is a significant period of time. During the hearing, the applicant was frank and admitted to breaching his bridging visa by working in breach of his no work condition in order to survive and provide himself with food and shelter.

42. On the evidence before the Tribunal, the Tribunal is not satisfied that the applicant has complied substantially with the conditions to which his bridging visa was subject. Further, the Tribunal regards the applicant’s period of unlawfulness as significant. Accordingly, the Tribunal places significant adverse weight on the applicant’s past conduct in this regard.

43. The Tribunal has little confidence that the applicant intends to comply with the conditions to which the visa would be subject, given the applicant’s evidence that he needs to work ‘to survive’ and presumably will still continue to need to work in the future. The Tribunal’s concerns are also compounded because the applicant was adamant at hearing that he wanted to remain permanently in Australia as it was unsafe to return to India. The Tribunal also has doubts given the significant time the applicant was unlawful in Australia. From the evidence the applicant appears to be highly motivated to remain in Australia and the Tribunal is not convinced that were the applicant to have no option but to return to India, the applicant would not again disregard his visa conditions and become unlawful (rather than apply for a visa offshore) or abide by the conditions to which the visa would be subject.

44. The Tribunal has also considered the applicants claims regarding medical treatment in Australia and makes several observations. The only evidence that was provided in support of the applicant’s claimed medical condition and treatment was that contained in the Form 1507. The applicant has not provided any current or other relevant evidence which indicates that he is undergoing medical treatment and that he intends to stay temporarily in Australia for the purposes of medical treatment.

45. The Form 1507 provided by the applicant was completed on 20 February 2020. Over two years have passed since that document was submitted and no updates on treatment have been provided. Given the Tribunal wrote to the applicant and requested information about his medical condition(s) and treatment(s) and received nothing in support, the Tribunal suspects that the applicant attended his general practitioner once as evidenced by the completed Form 1507 and did not present again. The Tribunal is satisfied that the paucity of medical evidence concerning the applicant’s medical condition(s) and treatment(s) demonstrate that the applicant did not apply for the visa for medical treatment, but did so to maintain an ongoing residency in Australia.

1. The Tribunal has also taken into account that the applicant has been given the benefit of remaining in Australia on a Bridging visa 050, well beyond the time he had requested (25 February 2021), approximately one year, by virtue of the time it has taken to list this matter for review. Further, there is no evidence that the applicant could not receive medical treatment for his shoulder in his home country. The Tribunal also notes that there is no evidence before the Tribunal that the applicant is not able to purchase painkillers or some similar medication in India. As such, the Tribunal is not persuaded that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, medical treatment, but intends to continue an ongoing residence in Australia.

2. This is further supported by the applicant’s migration history, which indicates that the applicant has remained onshore in Australia for approximately 15 years and eight months and has not departed. The delegates’ decision record notes that the applicant has lodged three [permanent visa]s and subsequently sought avenues of review including administrative and judicial review including in the High Court which were unsuccessful, with a Minister win being recorded on 5 February 2020 shortly before he made the current visa application.

3. At hearing the applicant was adamant of his desire to remain in Australia permanently due to his claimed fear of returning to [India]. While the Tribunal accepts that the applicant has family in India, given his lengthy stay in Australia and the fact that he has established a life in Shepparton, including employment, renting a property and owning a motor vehicle, the Tribunal doubts that his ties overseas outweigh those in Australia.

4. Further, given he has continued to remain in Australia for a lengthy time, the Tribunal is led to consider that whatever the conditions of his home country might be, these are not such that would encourage him to return home. In all, the Tribunal is not satisfied that the applicant’s personal circumstances and the conditions of his home country are such as to encourage the applicant to return to India at the end of the proposed stay. This is because the applicant has shown no motivation to return in the past and continues to have ties in Australia. The Tribunal also finds that the conditions in Australia are such that they might encourage the applicant to remain here, as evidenced by him being able to find temporary work (even though the applicant is not a national of Australia and English is not his first language) and maintain a presence in Australia, including accessing the legal system without difficulty.

5. Further, the Tribunal notes the applicant is now 55 years of age having first come to Australia as a 39 year old. The Tribunal considers that the applicant has now spent a good part of his adult years in Australia, including working here and that starting over in India will present challenges to the applicant.

6. Given the above findings, cl.602.215 are not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

7. As the Tribunal is not satisfied that the applicant meets cl.602.215, it is unnecessary for the Tribunal to decide if the applicant satisfies cl. 602.217(1) of the Regulations.

   DECISION

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

   Naomi Schmitz
   Member