Kaur (Migration)

[2022] AATA 4731

Kaur (Migration) [2022] AATA 4731 (22 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kulbir Kaur

CASE NUMBER:  2113699

HOME AFFAIRS REFERENCE(S):          BCC2021/1736669

MEMBER:Stephen Witts

DATE:22 November 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 22 November 2022 at 10:07am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – significant periods of unlawful residence – no medical evidence – maintaining ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 30 September 2021 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 7 September 2021. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because the applicant failed to satisfy the criteria set out in the relevant Migration Regulations.

4. The applicant appeared before the Tribunal on 22 November 2022 to give evidence and present arguments.

5. 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 decision under review should be affirmed.

   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.

8. According to the delegate’s decision record dated 30 September 2021 provided to the Tribunal by the applicant, the applicant lodged an application for a medical treatment visa stating that they would like to remain in Australia to seek medical treatment. According to the delegate it made an assessment of this application considering the amount of time already spent in Australia along with the applicant’s migration history and made a decision that the applicant was not a genuine temporary entrant.

9. According to the delegate the applicant arrived in Australia on 7 February 2009 holding a student visa which was cancelled on 17 January 2011 and on the day of that refusal the applicant applied for a protection visa.

10. According to the delegate this application for a protection visa was refused and the applicant sought review at the Tribunal which affirmed the delegate’s decision. According to the delegate the applicant sought ministerial intervention regarding their immigration status however the matter was not referred.

11. According to the delegate the applicant has spent significant periods of time in Australia as an unlawful noncitizen and has then made an application for a medical treatment visa.

12. It was also noted by the Department that an opportunity was given via a natural justice letter to respond and that no response was received.

13. The Tribunal has considered all the material provided by the applicant prior to the hearing and evidence given at the hearing.

14. At the hearing the Tribunal had a discussion with the applicant.

15. The applicant stated that she has been in Australia since 2009 and has never returned to her home country. She stated that she doesn’t work and that she has no money. She stated that she is here by herself and rents with friends and that she relies on those friends for financial support.

16. She stated that she has a sore back and shoulder and that she has been receiving treatment from a physiotherapist but that she hasn’t necessarily been receiving regular treatment because the consultations cost $280 and that she can’t afford it. In regard to her medical treatment, she stated that she could not recall what her condition is called but that she is having problems with her shoulder and back. She stated that once her shoulder is better, she will return home.

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

18. Clauses 600.215 and 602.212 are set out immediately below:

    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.

19. Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:

    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.

20. Clause 602.212 (6) (f) provides as follows:

    “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

21. The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

22. Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”

23. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

24. The applicant was born on 15 September 1986. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

25. Hence the applicant does not meet the criteria set out in cl.602.212 (6).

26. Accordingly, the Tribunal turns to cl.602.215.

27. The Tribunal has considered the evidence provided by the applicant carefully. The Tribunal notes that the applicant has now been here for almost 13 years on various visas as outlined above and that she has never returned home. The Tribunal finds that this lends weight to the contention that the applicant is seeking to maintain residence here in Australia and is not a genuine temporary entrant.

28. The Tribunal now turns to the issue of the applicant’s medical treatment. The applicant has asserted that she has a sore back and shoulder and that she has been to a physiotherapist but no evidence of any kind in regard to this has been provided other than her assertions to that effect. No medical evidence of any kind was submitted.

29. Therefore, there is no evidence before the Tribunal that the applicant has been receiving any medical treatment in Australia for a lengthy period of time.  There is no evidence before the Tribunal that the applicant has current plans to seek medical treatment.  There is no evidence before the Tribunal that the applicant has plans to leave Australia.

30. There is no documentation or additional information before the Tribunal that was not before the delegate. The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state the applicant must remain in Australia for ongoing consultation.

31. There is no evidence before the Tribunal that the applicant has a current consultation and or plans for future consultation. Information provided does not state that the treatment the applicant was seeking as at the time of the applicant’s application for a Medical Treatment visa was unavailable outside of Australia and in the applicant’s home country.

32. The Tribunal has considered the claims and supporting evidence that the applicant has provided with the application.

33. The Tribunal finds that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintain ongoing residence, and that the applicant does not genuinely intend to remain in Australia on a temporary basis.

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

35. 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

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

    Stephen Witts
    Member