Kaur (Migration)

[2022] AATA 4625

Kaur (Migration) [2022] AATA 4625 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ravinder Kaur

CASE NUMBER:  2117366

HOME AFFAIRS REFERENCE(S):          BCC2021/2036184

MEMBER:Mara Moustafine

DATE:17 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 17 November 2022 at 6:02pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – medically unfit to depart Australia – applicant remained in Australia after treatment period – complying with conditions of previous Visitor visa – maintaining ongoing residence in Australia – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359
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 4 November 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 is a citizen of India and is 47 years old. She last arrived in Australia on 1 November 2018 as the holder of a Visitor (subclass 600) visa valid for a temporary stay as a visitor for a maximum of six (6) months. Her application for a further Visitor (Subclass 600) visa on 16 May 2019 was refused and this was affirmed by the Tribunal on 27 September 2021.

3. On 26 October 2021 the applicant applied for the Medical Treatment visa currently under review. 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).

4. With her application the applicant provided a Form 1507 (Evidence of intended medical treatment) signed by Dr Danny Le Nguyen of Wellbeing Chiropractic Footscray on 20 October 2021 which stated that the applicant required treatment for headaches, upper and lower back pain (sciatica) for which she would be treated by chiropractic: manual therapy, soft tissue therapy, rehab. In her application form she stated that she wished to remain in Australia for the purpose of undergoing medical treatment from 26 October 2021 to 30 January 2022 and that associated costs of $200-2500 would be paid by her husband in India. The applicant also provided a copy of her National Identity card, the biodata pages of her Indian passport, various financial documents and a letter of clinical recommendation from the chiropractor dated 20 October 2021.

5. The delegate refused to grant the applicant the visa because she was not satisfied that the applicant genuinely intended to remain in Australia on a temporary basis but was attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence.

6. On 23 November 2021 the applicant lodged an application for review of the Department’s decision. A copy of the Department’s decision was provided to the Tribunal.

7. On 7 October 2022, the Tribunal wrote to the applicant inviting her, pursuant to the provisions of s.359(2) of the Act, to provide information to the Tribunal as follows:

   ·     The nature of the medical treatment proposed for you.

   ·     What arrangements have been concluded to carry out the treatment?

   ·     What arrangements have been concluded for the payment of all costs related to the treatment?

   ·     Whether the medical treatment referred to in your Form 1507 (Evidence of Intended Medical Treatment) has commenced, and if so, has it concluded or when is it due to conclude?

   An applicant for a Subclass 602 Medical Treatment visa must meet the requirement that he or she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

   Noting that your application was made on 26 October 2021, that your application form stated that you wished to remain in Australia for the purpose of undergoing medical treatment from 26 October 2021 to 30 January 2022 and that you have been in Australia since 1 November 2018, please provide any evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

8. On 21 October 2022 the applicant emailed to the Tribunal the following response:

   I am writing this letter regarding my medical treatments for my acute lower back pain with associated sciatica rendering me unable to sit longer than 1 hour continuously. I have been attending Chiropractor appointments (Danny Nguyen – 31 Droop Street, Footscray) and then later at (Palmers Medical Centre, Truganina) and my present GP is at (Supernova Medical Centre, Tarneit). The appointments are on a regular basis. As the doctor advised me to have a carer with me so I have someone 24/7 to assist me in daily tasks i.e., showering, changing clothes. Due to the severe aches, I am dependent on carers and my family members. I have BUPA Medical insurance (insurance number – 45301314) which covers all my medical treatments in the hospital. For my carer salary my son Mr. Rahulpreet Singh pays for it personally.

   Please find attached my medical treatment history and doctor notes. The treatment is still ongoing, and doctors haven’t given me any time frame for my condition to get better. I am waiting for a letter from my GP and would receive it by Tuesday 25.10.2022 as they were gone for holidays and just came back. That's why the letter couldn’t be attached presently.

9. Also submitted was an account statement from Footscray Wellbeing Chiropractic showing payment for 5 appointments between 5 June 2021 and 9 November 2021 and a Patient Health Summary from Palmers Medical Centre indicating current medication as a daily Iron tablet and an active past history of Diabetes Mellitus (type 2) on 3 February 2022.

10. The applicant appeared before the Tribunal on 17 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, Rahulpreet Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

13. The issue in this case is whether the applicant has a genuine intention to stay temporarily for the visa purpose.

14. Relevantly to this matter cl. 602.215 provides:

    (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.

    Is the applicant unfit to depart Australia?

15. 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(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.

16. The applicant provided a copy of the biodata page of her current passport which shows that she was born on 23 March 1975. As she has not turned 50, the requirements in cl.602.212(6) are not met. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

    Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

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

17. In the present case, the visa applicant seeks the visa for the purposes of medical treatment for headaches, upper and lower back pain (sciatica). This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

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).

19. As set out above the applicant does not meet the requirements in cl. 602.212(6).

20. With regard to the requirement that the applicant must have a genuine intention to stay temporarily for the purpose of medical treatment or related matters, the only evidence provided by the applicant was the Form 1507 (Evidence of intended medical treatment) signed by Dr Danny Le Nguyen of Wellbeing Chiropractic Footscray on 20 October 2021 which stated that the applicant required treatment for headaches, upper and lower back pain (sciatica) for which she would be treated by chiropractic: manual therapy, soft tissue therapy and rehab. Her application form stated that she wished to remain in Australia for the purpose of undergoing medical treatment from 26 October 2021 to 30 January 2022. In response to the Tribunal’s request for information as to her treatment to date and status of her condition, the applicant stated that her treatment was ‘still ongoing’, and doctors had not given her any time frame for her condition to get better. She provided an account statement from Footscray Wellbeing Chiropractic showing payment for 5 appointments between 5 June 2021 and 9 November 2021 and a Patient Health Summary from Palmers Medical Centre indicating current medication as Iron tablets and active past history of Diabetes Mellitus (type 2) on 3 February 2022. Although she indicated that she was expecting to receive a letter from her GP by 25 October 2022, nothing further was provided to the Tribunal.

21. Asked at hearing about the status of her medical treatment, the applicant told the Tribunal that it was ‘ongoing’. She said she was seeing a chiropractor, having massages close by, getting rest and being looked after by her children. She claimed that her doctor would be sending her for more x-rays and refer her to a different physiotherapist or chiropractor. She said that it had been difficult to receive the treatments she required during COVID.  

22. Asked why she could not receive the same sort of treatments in India, the applicant said she wanted to get better before returning to India because her husband worked as a policeman and was often away from home for as long as a month. She noted that her husband was covering the costs of all her medical treatment in Australia. She accepted that he could also do this in India but repeated several times that in Australia she had her two sons and daughter-in-law to look after her. She said she was concerned about her health the long flight back to India. In his witness evidence, her son, who according to the applicant booked all her medical appointments, stated that his mother wished to return to India as her husband was there but that she needed to have more tests. When pressed as to when she intended to return to India, both the applicant and her son indicated that she could go back in another two or three months, without giving any indication as to the premise on which this was based.  

23. In a discussion of her migration history, the applicant confirmed that she last arrived in Australia on 1 November 2018 as the holder of a Visitor (subclass 600) visa valid for a temporary stay as a visitor for a maximum of six (6) months. Her application on 16 May 2019 for a further Visitor visa was refused and this was affirmed by the Tribunal on 27 September 2021.  The applicant told the Tribunal that she had visited Australia on multiple occasions since 2014 when she first came on a Student Guardian visa with her son who was then a minor. She then visited Australia regularly on multiple entry Visitor visas, always departing on time until her last visit when her outward flight was booked outside her visa timeframe.

24. As discussed with the applicant, the purpose of a Medical Treatment visa is for a person to remain in Australia to undertake specified medical treatment on a temporary basis. However, while her Medical Treatment visa application had indicated a treatment period from 26 October 2021 to 30 January 2022, she was still in Australia nine months later. Although she claimed that she was still undergoing medical treatment for her headache, neck and back pain, the only evidence provided to the Tribunal was an account statement that she had attended chiropractic appointments between 5 June 2021 and 9 November 2021 and a Patient Health Summary from Palmers Medical Centre indicating current medication as a daily Iron tablet and an active past history of Diabetes Mellitus (type 2) on 3 February 2022.  It appeared, therefore that she was using the Medical Treatment visa to remain in Australia with her children rather than for the purpose that such a visa is granted.

25. By her own evidence the applicant had failed to comply with the conditions of her last substantive Visitor visa by not returning home within the validity of the visa and was subsequently refused a Visitor visa. 

26. The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject, in particular condition 8201 (No studies) and 8503 (The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia). There is no evidence that the applicant intends to study while in Australia and the Tribunal accepts that the applicant will comply with condition 8201.

27. With regard to condition 8503, the Tribunal considers that the applicant has a strong motivation and intention to remain in Australia due to the presence of her family here and the extended time she has spent here previously. In light of this, the Tribunal is not satisfied that if condition 8503 were placed on any visa, the applicant might not seek to obtain a waiver of such a condition.

28. As discussed with the applicant, having considered the absence of medical evidence provided regarding the status of her condition and when her medical treatment was due to conclude, her failure to depart at the end of the period originally sought for her medical treatment and the length of time she has spent in Australia, the Tribunal is not satisfied that the applicant has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

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

    Conclusions

30. 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

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

    Mara Moustafine
    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).