KAUR (Migration)

[2020] AATA 5236

KAUR (Migration) [2020] AATA 5236 (16 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Karamjit KAUR

CASE NUMBER:  1714465

DIBP REFERENCE(S):  BCC2017/2116117

MEMBER:Ian Berry

DATE:16 January 2020

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 16 January 2020 at 10:36am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – temporary stay for purpose of visa – visa history – on bridging visa at time of motor vehicle accident – slow recovery from injuries – medically capable of departing Australia – medical experts’ reports – extent of injuries and conditions – ongoing and regular treatment for prolonged period required – availability of treatment in home country – financial situation – decision under review affirmed

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 Immigration on 20 June 2017 to refuse to grant the visa applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 June 2017. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment) (the visa). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant provided the Tribunal with a copy of the Department’s delegate’s decision made on 20 June 2017. The delegate refused to grant the applicant the visa because the applicant did not meet cl.602.215, in that the applicant arrived in Australia on 7 November 2008 as a secondary applicant to her husband, Mr Jaswinder Singh, who was granted a student visa. Since the applicant’s arrival, both her husband and the applicant have stayed for 3,102 days, with short stays outside Australia of about 38 days (as at 20 June 2017). The delegate noted the applicant had not provided evidence of treatment, medications, therapy or consultations that the applicant is seeking and which are unavailable in her home country, India.

4. The delegate made the finding that the applicant is a person, within a category of persons, who require lengthy or rolling medical treatment visas on the basis that they will require ongoing and regular medical treatment for a prolonged period. Although the applicant is medically capable of departing Australia, she would prefer to remain in Australia indefinitely in order to continue medical treatment. Unless exceptional circumstances apply, it would be expected that applicants in this situation would not ordinarily meet the genuine visit requirement.

5. The Tribunal invited the applicant to hearing on 11 April 2018.  The applicant was represented by Mr Bhardwaj (the representative).  The applicant was invited to the second hearing on 13 January 2020. Only the applicant gave evidence.

   Background

6. The applicant accepted that the following are the facts relating to both her and her husband’s stay in Australia:

   (a)With her husband Mr Jaswinder Singh (as the grantee of a student visa), the applicant entered Australia on 7 November 2008. The Department's delegate assessed that the couple's stay in Australia had been, at the time of the Department's decision, 3,102 days (around eight and one half years), with departures for short periods aggregating to 38 days.

   (b)On 21 September 2012, with her husband, the applicant applied ‘onshore’ for a further student visa.

   (c)The application was refused by the Department on 11 December 2012.

   (d)The applicant and her husband applied for a review of the delegate’s decision through the Migration Review Tribunal (as it then was), which affirmed the delegate’s decision on 7 March 2014.

   (e)The applicant appealed the delegate’s decision to the Federal Circuit Court of Australia. On 7 August 2014, both applicants’ appeals were dismissed with costs. The Judge noted the appellants were married but divorced before the appeal hearing. The applicant’s evidence confirms this fact and adding the husband had reconciled with the applicant after she sustained injuries in the motor vehicle accident on 22 October 2014.

   (f)The applicant (with her husband) then applied for Ministerial intervention without success. The applicants were then each granted a Bridging visa E.

   (g)The applicant again sought Ministerial intervention which, on the second occasion, was granted. Presumably, the visa was granted because the applicant suffered personal injury in a motor vehicle accident on 22 October 2014 (the accident).

   (h)On 13 June 2017, the applicant made another visa application because of the slow recovery from her injuries.

   (i)Following the refusal of this visa application by the Department, the applicant applied for a review of the decision which is the matter now before the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. For this case, the issue is whether the applicant intends to remain in Australia temporarily for the purpose the visa was intended. If that is not the applicant’s intention, the next issue is whether there are compelling or exceptional circumstances to warrant departure from the purpose the her visa.

   Is the applicant unfit to depart Australia?

9. Clause 602.212 requires the applicant to meet one of seven alternative criteria: cl.602.212(2) to (8). Each of these criteria is a basis for which the stay in Australia is required.

10. The applicant has not raised either in evidence or submission that cl.682.212(2) to (8) apply, other than cl.602.212(6).

11. Clause 602.212(6) relates to an applicant who is medically unfit to depart Australia. The elements of this subclause are that the applicant:

    (a)Is in Australia.

    (b)Has turned 50 years of age.

    (c)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 (the visa conditions include 1801, 8506, 8207, 8564 and 8401).

    (d)Is medically unfit to depart Australia due to a permanent or deteriorating disease or condition as evidenced in writing by a medical officer of the Commonwealth.

12. The applicant’s date of birth is 11 March 1975 so she has not yet turned 50 years.

13. There is no evidence from a Medical Officer of the Commonwealth, with the opinion the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or condition. The Tribunal accepts that the applicant has not been assessed by such a Medical Officer of the Commonwealth for any such purpose.

14. In her evidence, the applicant stated she had not ever applied for a permanent visa. There is no evidence of the applicant having been refused a permanent visa which includes visa conditions 1801, 8506, 8207, 8564 and 8401.

15. Given the above findings, the cl.602.212(6) requirements are not met.

16. Accordingly, cl.602.215(1) applies, as set out below.

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

17. Clause 602.215 requires that the applicant ‘genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted’ having regard to:

    (a)the applicant has complied substantially with the last held substantive visa or any subsequent bridging visa.

    (b)An intention to comply with the conditions to which the visa would be subject.

    (c)Any other relevant matter.

18. This requirement will not apply if the applicant is medically unfit to depart Australia as detailed in cl.602.212(6). However, as previously found, the applicant does not meet cl.602.212(6).

19. The Tribunal must now consider whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted, by considering the matters set out in cl.602.215(1)(a) to (c) and other relevant matters.

20. As the applicant had undertaken a claim for damages for personal injuries, she had undertaken various examinations by doctors who were acting as expert witnesses required either in the negotiations or a court determination of her now settled personal injuries claim.  The doctors who provided expert witness reports were Dr Scott F Campbell, Orthopaedic Surgeon, Dr Jon S Steinberg, Neurosurgeon, Dr Peter Winstanley, Psychiatrist, Dr Associate Professor Gordon Stuart, Consultant Neurosurgeon, Dr Steve Morgan, Psycologist and Dr Malcolm F Wallace orthopaedic surgeon.  A brief summary of their opinions are set out below.

21. Neurosurgeon Dr Scott F Campbell’s report dated 10 March 2016 stated[1]:

    [1] Tribunal File Folio 122-119

    “I confirm that I interviewed and examined Karamjit Kaur on 10 March 2016 for the purpose of provision of medico-legal report pursuant to your request. The history is as provided by the patient and reports listed below unless otherwise stated.
    Current status:
    it is now 17 months since Mrs Kaur was involved in a road traffic accident and she continues to complain of:

    1.Right wrist pain.

    2.Right upper limb hypersensitivity.

    3.Forehead scarring.

    The right wrist pain is aggravated by a general use of the right upper limb to perform tasks.
    The right upper limb hypersensitivity is located over the volar aspect of the right hand and dorsal aspect of the right wrist. The hypersensitivity is annoying and is aggravated by accidental contact to the region.
    The forehead scarring is socially embarrassing.
    Mrs Kaur experiences ongoing poor short-term memory problems of undetermined aetiology”.

22. Psychiatrist Dr Jon S. Steinberg’s report dated 3 February 2016[2], stated:

    “Ms Kaur appeared to be depressed and concerned about the motor vehicle accident, she was concerned that she could not use her right hand which was motionless throughout the interview. She appeared to deny that she ever had tuberculosis or that she had a previous neurological condition. I am not sure why she denied this illness. She may lack insight into her past medical history. The motor vehicle accident was significant and consistent with the type of event that is described in the criteria for Post Traumatic Stress Disorder(DSM-IV TR)”.

    [2] Tribunal File Folio 124

23. Orthopaedic surgeon Dr Peter Winstanley’s medical report dated 15 February 2016[3] stated:

    “Ms Kaur has well-healed scars associated with the dorsal aspect of her wrist and a large scar present on the volar aspect of her right forearm. Ms Kaur has generalised complaint of altered sensation, which is variable in nature, on the dorsal aspect of her wrist. She has hyper anaesthesia associated with the Parmar aspect of her right hand in the distribution of the median nerve. There is no evidence of complex regional pain syndrome. Ms Kaur’s  range of motion was difficult to assess within her finger joints and thumb. She had a variable range of motion in her digits and had resisted range of motion in her hand associated with attempted passive motion”.

    [3] Tribunal file Folio 136-129

24. Psychologist  Dr Steve Morgan’s report dated 18 March 2016[4] makes the following assessment:

    “Ms Kaur denied pre-injury contact with any psychologist, psychiatrist or professional help in service. She stated that she had never been previously prescribed anti-depressant or other medication. Post-incident, on the basis of low mood, Ms Kaur was referred to Dr Randhawa (a psychiatrist whom she can talk to without interpretive assistance) in early 2015 -and whom she estimated attending on a fortnightly basis for over 12 months”.

    [4] Tribunal file Folio 150-142

25. Dr Associate Professor Stuart’s report of 28 July 2016[5] summarises the state of care received by the applicant and finds that the injuries she received are consistent with the collision between a scooter and a motor vehicle and has been found to suffer 1% whole bodily impairment.

    [5] Tribunal file Folio 140

26. The 23 March 2016 medical report of Dr Malcolm F Wallace[6] orthopaedic surgeon found that in his opinion the applicant had now reached maximum medical improvement.  He opined that the applicant should continue with medications she is now taking and continue with an exercise program to improve her grip strength and mobility.

    [6] Tribunal file Folio 153

27. The applicant’s medical treatment and care was shared between her general practitioners, medical specialists and health therapists.  The applicant’s treatment concerned mainly her epilepsy and right forearm hypersensitivity which is now the subject of a medical treatment procedure scheduled in February 2020.

28. The Tribunal has given careful consideration to all the medical evidence, in the form of medical reports provided by the applicant’s treating doctors and health care professionals.  The Tribunal notes that the reports give opinions of reasons why the applicant’s departure from Australia is not advised.  The reasons concern, not the capability to leave to depart, but rather the applicant  should neither stop her treatment in Australia or her ongoing care.  Importantly, these medical and health care reports do not concern whether she can depart Australia or the reasons as to why she cannot so depart.

29. In response to the Tribunal’s invitation dated 9 February 2018, the applicant provided information about her medical condition.  The following medical reports detail the doctors’ summary, diagnosis and prognosis:

    (a)On 22 February 2018[7], the applicant’s treating psychiatrist Dr Randhawa, reported that he treated and continues to treat the applicant for Post-traumatic stress disorder (PTSD) and secondary depression.  The doctor described her symptoms as moderately severe. She was prescribed medication as well as attending two-three weekly psychotherapy sessions.  The applicant in her evidence says she continues to see Randhawa once every month or once every two months.  The doctor does not elaborate on the treatment given, but provides the opinion that the applicant’s treatment has been slow to treatment.  He says “she is still many months away from making a recovery, in my opinion, Karamjit is likely to require another year to recover from her condition, if not more”. 

    (b)Dr Dharmesh Sonigra is the applicant’s treating neurologist. His report dated 2 March 2018[8] describes her medical progress of post-traumatic epilepsy, chronic persistent migraines and complex regional pain syndrome affecting her right arm.  Dr Sonigra notes that her epilepsy was then unstable with current antiepileptic medications been prescribed.  She had a seizure about two weeks ago (that would mean February 2018).  “She had trials of at least nine different migraine preventer medications with minimal success…”.  He proffers support for the applicant continuing to stray in Australia for medical treatment. 

    (c)The applicant’s consultant in pain medicine, Dr Feberwee reports in her 29 March 2018 letter[9] that the applicant sustained a significant head injury secondary to a motor vehicle accident with ongoing pain in the right arm and shoulders.  Dr Feberwee states that the applicant is receiving ongoing intermittent pain management treatment in the form of interventional pain procedures. Dr Feberwee also states that she has seen a rehabilitation specialist who is recommending further assessment and treatment for cognitive rehabilitation.

    (d)Dr Randhawa’s medical report of 1 June 2018[10] confirms his having cared for the applicant since 22 April 2015 with his review having been carried out on 1 June 2018 receiving treatment for Post-Traumatic Stress Disorder and secondary Major Depressive Disorder.  He refers to the applicant receiving a combination of pharmacology and psychotherapy with the applicant’s response to treatment being modest.  His medical report states that the applicant commenced lithium augmentation therapy and takes Lexapro 20 mg.  He also states that the dose of lithium carbonate is being increased to 500 mg for night.  Dr Randhawa opines that the applicants PTSD is treatment-refractory and he is now not very optimistic as to her PTSD improving very much in the next couple of years.

    [7] Tribunal file Folio 54

    [8] Tribunal file Folio 63

    [9] Tribunal file Folio 77

    [10] Tribunal file Folio 171

30. The latest reports received from the applicant’s treating doctors are summarised in the following reports:

    (a)The applicant’s general practitioner Dr Rao’s report of 26 October 2018 is directed to the Princess Alexandra Hospital in anticipation of the medical procedure scheduled for 12 February 2020.  He refers to her history and medications but does not give an opinion.  The applicant seems to be under the care of more than one general practitioner, though not all from the same practice.

    (b)Dr Randhawa’s medical report of 11 December 2019 is directed to ‘to whom it may concern’ and it states:

    “Karamjit has asked me to write to you in my capacity as her treating psychiatrist.  She continues to see me for ongoing treatment for her PTSD and depression.  I believe it’s important for her to stay in the country for her treatment to continue”

    (c)Massage therapist Ms Parra in her undated report [11]states that since September 2018 the applicant has a weekly 30 minute relaxation massage.  She states that throughout the past year, both her physical and emotional well-being has improved, however the applicant still needs more continuous holistic treatment in order for her to fully recover.  Ms Parra provided the Tribunal with a full treatment summary consisting of appointments with doctors at the World Wellness Health and Medical Clinic[12].  The list consists of appointments between 7 June 2018 and 10 December 2019 and would be approximately 244 appointments with both therapists and doctors.  The Tribunal has not received any report from the doctors on that list.

    (d)The applicant has also been seeing general practitioner Dr Khan (a doctor in the same clinic as Dr Rao) who, in his 7 December 2019 report, states:

    “This is to certify that Karamjit Kaur (11.03.1975) needs to continue treatment in Australia.

    She is improving gradually.  She might need another surgery as part of her treatment.  Dr Heidi Feberwee is treating her pain relief with injections given every 6-8 months.  She is enrolled in a rehab programme.

    I strongly recommend her to continue the same treatment and stay in Australia.  At this time, she should not travel to India which would interrupt her treatment.”

    (e)Dr Heidi Feberwee in her report of 17 December 2019 reports that she has booked the applicant to undergo the procedures that were discussed with the applicant.  As this letter is directed to the applicant it does not detail the operative procedure.

    (f)Lastly the report of Dr Gillian Nalder (Consultant in Rehabilitation Medicine) dated 17 December 2019, provides a description of her present condition.  The applicant is said to have moderate to severe neuropathic pain in the right forearm with associated altered sensation, pins and needles in the distribution of ulnar and medial cutaneous nerve.  She has severe hyperalgesia and allodynia.  This is provoked with brush contact.  She is predominantly using her Left upper limb to complete activities.  She has secondary neck and shoulder pain with muscle spasm.

    [11] Tribunal file Folio 826

    [12] Tribunal file Folio 824 – 826

    Applicant’s Bridging visa E

31. Between 7 August 2014 when the applicants were granted Bridging visas E-050 and the date of the accident, Mr Singh and the applicant remained in Australia on bridging visas, which were Subclass E-050, issued on the condition that they were to depart Australia. The applicant’s accident happened two months later on 22 October 2014. There is no evidence of the applicant making arrangements to leave Australia.  The Tribunal places no  weight, on the applicant and her husband not taking steps to leave Australia.  The reason for placing no weight is the applicant was granted her Bridging visa E in September 2014 and suffered personal injury in the motor vehicle incident on 22 October 2014. 

1. On 3 March 2015, the applicant made application for a medical treatment visa UB 602.  This application was refused on 6 March 2015.  On review the Tribunal affirmed the Department's decision on 26 May 2015.

2. On 13 June 2017, the applicant lodged an application for a UB 602 medical treatment visa on the grounds she wishes to remain in Australia for a further period of 12 months in order to obtain psychiatric treatment in Australia. The delegate refused to grant the visa on the basis that the applicant could not satisfy clause 602.215, as she did not have a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

   Submissions made on the applicant’s behalf

3. The applicant made submissions supporting her claim to remain in Australia because of the injuries she suffered and the benefit of her continuing to receive treatment in Australia.

4. The submission of 7 June 2017 sets out the chronological history and background, which is not dissimilar to the background set out by the Tribunal. The relevant paragraphs from this submission have been extracted below:

   “It is submitted that the delegate may not have considered the following:

   a)   Letter from her treating Doctor: Letter from Dr Dharmest Sonigra clearly states that Mrs Karamjit core is: –

   a.Is her patient.

   b.She is unfit to travel.

   c.  She has trials of at least 10 different migraines preventative medicines, over the past two years with minimal success.

   d.  She is ongoing to have further trials.

   e.  That requires her to stay in Australia, and

   f.   Supporter application to stay in Australia, unless advised otherwise.

   b)It is submitted that this letter may not have been submitted to the tribunal as the doctors only see their patients with appointments and that would not have occurred.

   c)   Question of availability of treatment at her home country: please refer to the Statutory declaration of Mrs Karamjit Kaur. It is been assumed that the treatment available in a developed country would be available in a developing country. However, the delegate does not take into account the affordability, accessibility to medical services and the importance of continuing medical treatment under Doctor . A change of treatment or treating doctor may be very detrimental to Mrs Karamjit Kaur’s health, which begs the question who would be held responsible if the change in the medical supervision is the cause of decoration in Mrs Karamjit Kaur’s health

   d)   Assessment by a Medical Officer of the Commonwealth: My humble submission is that assessment by a medical doctor from the Commonwealth is not mandatory in this case as there are two registered doctors treating Mrs Karamjit Kaur. If there is some doubt about the letters given by the doctors or their treatment or diagnoses, then the onus lies on the state to get that evidence in rebuttal. In an case this was not asked by any delegate in the past too.

   e)   Residential status of Mrs Karamjit Kaur’s spouse: it is submitted that this is not about Mrs Karamjit because spouse. It is about the health and well-being of Mrs Karamjit Kaur. The spouse of Mrs Karamjit Kaur has not made any attempts to lodge any other visa nor has he made any further application to study. He acts as a full-time carer of Mrs Karamjit Kaur.

   f)    Evidence of returning to India: My humble submission is that after talking to Mrs Karamjit Kaur and her spouse, they are very stressed and depressed as the accident has left Mrs Karamjit Kaur with a very serious medical condition. Their main concern is the health of Mrs Karamjit Kaur at this point of time.

   g)   Sufficiently compelling or exceptional circumstances: in relation to this observation, I would request you to please refer to the Senate or the honourable James McGrath’s decision to grant a medical visa to Mrs Karamjit Kaur. Please also refer to the letter from both treating doctors who state that Mrs Karamjit Kaur’s medical condition “requires constant supervision”, her stay is required, “she is unfit to travel” and there has been further improvements in her, is a sufficient and compelling reason for Mrs Karamjit Kaur to stay in Australia.

   h)   Letter of support: please find attached the letters from Mr Manish Aggrawal and Mrs Ritu Ahir. They have supported Mrs Karamjit core and her spouse, financially and medical expenses. It is submitted that the stay of Mrs Karamjit core and her spouse is not a financial burden on the exchequer.

   Thank you for considering her application. At this stage, we do not propose to lodge the list medicines being taken by Mrs Karamjit Kaur. Mrs Karamjit core has further appointments with her doctors. If there are any further questions, please do let me know.

   Regards,

   Atul Bhardwaj
   Director
   Our Visa Solutions”

5. Addressing the applicant’s submission of 7 June 2017, the applicant’s evidence is that she received a settlement of her damages claim in the amount of $309,000 paid into her bank account. Expense of medical treatment is an issue upon which the applicant has not provided relevant independent evidence. The Departmental policy suggests that it is not an issue in consideration of the applicant returning to her home country.

6. The date of Dr Sonigra’s report is not given. It appears he has provided two reports, namely 29 June 2017 and 2 March 2018. The former report states the applicant is suffering from post-traumatic epilepsy, chronic persistent migraines and complex regional pain syndrome affecting her right arm. The applicant, owing to her epilepsy, is unstable on current anti-elliptic medications. She requires constant observation in her home given the potential seizures. The doctor opines that she is unfit to travel by air due to these medical conditions. She further says that the applicant has suffered from chronic persistent migraines a lot over the last two years. She has had trials of at least 10 different migraine preventer medications over the last two years with minimal success. She is going to have further trials with different migraine preventer medications, which will require her to stay in Australia and have regular medical follow-ups. Dr Sonigra therefore says it would be appropriate for her to support the applicant staying in Australia for her medical treatment. It would have been a relevant consideration for Dr Sonigra to support his opinion with evidence as to the number or frequency of epileptic episodes she now suffers. The applicant’s evidence is that she knows when epileptic fits or episodes occur by the way she feels afterwards. Whether she informs Dr Sonigra is unknown. The applicant did not give evidence of the frequency and the Doctor does not refer to any evidence supporting his opinion. The Tribunal is left with the Doctor’s opinion the applicant is unable to travel because she needs to continue her medications.

7. At home, the applicant still contends her husband care for her. The applicant was shown an excel spreadsheet  indicating the employment of the husband. The applicant’s only referred to her employment and did not address the frequency and duration of his employment from Friday, 6 December 2013 to Tuesday, 4 December 2018. The applicant was questioned on other people who stayed in house from various times since the accident. She referred to a lady who stayed or one or two years, but could not remember when. She said this lady was not paying rent. However the applicant’s case was supported by statutory declarations that both she and her husband were receiving rent[13].

   [13] Tribunal file Folio 752: Sonia Dhanda states that she was a resident at 451 Warragul Road Eight Mile Plains that she lived at 1/10 Tara Street McGregor for a period of around one year and paid rent to the applicant.  Hardeep Kaur Aulakh (at folio 751 declared in a statutory declaration that she shared a house with the applicant from June 2018 to December 2018 and paid $160 rent per week to the applicant by transferring money to her account.

8. The applicant says she has friends helping her but evidence was not given by any other person who may care for her. The applicant’s husband has provided evidence of his employment as an Uber driver. The Uber records are sufficiently detailed, in terms of when he works throughout the day and night, to infer that the purpose of his medical visa is questionable as he does not play a substantive role in caring for the applicant either emotionally or physically.

9. There is no evidence that India does not have the appropriate specialists and medications available. The applicant has not provided any evidence on this point.

10. Dr Sonigra’s more recent report dated 2 March 2018, nine months after his initial report, continues to opine that the applicant requires constant observation at home given the potential for seizures to occur. Yet, the supervision that is required is not being given, as the applicant’s husband is working, and the assistance of friends appears to be minimal and not conclusive as the applicant either could not remember or did not record any details, as no written of the applicant was submitted.

11. As to the supervision provided by the applicant’s husband Mr Singh, his oral evidence was that he was her supervisor and if he was unavailable a friend would assist. There is no other evidence from any person who could corroborate the husband’s evidence. The Tribunal has carefully considered the hours he has worked as an Uber driver during the days, and is not satisfied he is giving an honest account of the care and supervision he provides the applicant.

12. The applicant’s husband’s statutory declaration, made 26 September 2018, states:

    I Jaswinder Singh state that, I did not apply for an Uber licence in 2011. I only applied for a license in 2015. These facts can be verified from the Uber company to. Ever licence was given to me I physically stated to drive Uber on in support of this. I have attached all my bank statement and the same can be verified through it. If there are any further questions in relation to Uber, I shall be happy to assist. I have also submitted my bank statement for your information Please. Regards Jaswinder Singh.

13. There is no recent medical information stating that the applicant cannot travel to her home country. She has had a long-term stay in Australia for the purpose of exploring various forms of treatment and operative procedures. The applicant has had both treatment and consultations over a substantial period of time. She has shown an unwillingness to leave Australia, having been on a Bridging visa E from August 2014 to the date of her accident on 22 October 2014. There was no evidence of her taking steps to leave Australia.

14. The Tribunal has carefully considered the applicant’s position. There is no current evidence from her about prescribed medications, and why it is necessary for her to continue to live in Australia to continue any such medications. There is no evidence specific evidence from either Dr Sonigra or the applicant that there is medical treatment or a prescribed medicine available in Australia that is not available in India.  There is no evidence  that the applicant needs support in departing Australia.

15. The applicant’s financial position also does not constitute a strong incentive for the applicant to return to India.

16. The applicant’s evidence is that her mother two brothers and sister continue to live in India in about the village where they were raised.  Her father is now deceased not that long ago.  Her evidence initially was that she had no involvement with her family but subsequently conceded she had contact with them occasionally.

17. The submission made on the applicant’s behalf concerned mainly the issue of the applicant having complied substantially with the conditions of the last substantive visa or subsequent bridging visas.  A breach by the husband of a condition of a student visa is not a matter which will be held against her.  The Tribunal accepts that there is not a breach by her of a substantive visa or any subsequent bridging visas.  The representative raises the issue as to evidence from the treating doctor’s that “their patient was in serious need of the treatment and was not fit to travel”.  That is not the evidence that was given in the reports but rather the reason why she ought not to travel is because of ongoing medical treatment and not that she was unfit to travel.

18. The submission also contends that based on the psychiatristic report (Dr Randhawa) dated 22 February 2018 “Karamjit is likely to require another year to recover”.  “It is important she remains in the country for continuity of treatment and care”.  The purpose of the visa is not for the applicant to continue indefinitely until she fully recovers from her injuries.  The visa is not for the applicant to have continuing care, but rather receive treatment on a temporary basis and then to abide by the terms of the visa and return to her in India.  The applicant has given evidence that she would prefer to remain in Australia. 

19. From the time of the accident to now, the applicant has remained in Australia for treatment and care.  The applicant has received that treatment and care and is, on the evidence, fit to travel to India.  However, it appears she is prepared to do so.

20. The Tribunal has considered cl.602.212(c) as to whether there are compelling personal reasons for the grant of the visa.  The applicant has been granted a visa designed for it to be temporary (cl.62.211) for the purpose of receiving medical treatment.  The applicant has received medical treatment from a number of specialists, general practitioners and health care professionals from the date of the accident to 15 January 2020, a period of nine years and two months.  The applicant has received compensation so as to be able to continue with medical treatment and care in India.  She has the support of a husband, and a family in India with whom she says she has occasional communication.  The applicant’s case is that she ought to continue to receive medical treatment in Australia notwithstanding her having been granted that temporary Visa.  The applicant has not raised any other personal reasons as to why the visa ought to be remitted to the Department.

21. After considering all the evidence before it, on balance, the Tribunal is unsatisfied that the applicant genuinely intends to stay in Australia for the purpose for which the visa was granted.

22. The Tribunal finds that the requirements of cl.602.215 are not met. Accordingly, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    DECISION

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

    Ian Berry
    Member