Kumar (Migration)

[2022] AATA 5248

Kumar (Migration) [2022] AATA 5248 (28 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjeev Kumar

REPRESENTATIVE:  Mr Manoj Kumar Nanda (MARN: 1568823)

CASE NUMBER:  2101387

HOME AFFAIRS REFERENCE(S):          BCC2020/2928384

MEMBER:Scott Clarey

DATE:28 June 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 28 June 2022 at 2:20pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant does not genuinely intend to remain in Australia on a temporary basis – depression and anxiety – applicant would be able to manage any medical issues he has on his return to India – applicant is not medically unfit to depart Australia – applicant has not provided any evidence about the medical treatment – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 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 19 January 2021 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 January 2021. 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. In its decision record (a copy of which was submitted to the Tribunal by the applicant) the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intends to remain in Australia on a temporary basis.

4. The applicant appeared before the Tribunal on 28 June 2022 to give evidence and present arguments. I note that minutes before the (in-person) Tribunal hearing was scheduled to start, the applicant phoned the Tribunal’s general switchboard, and told the attendant that he was unable to attend the hearing because of an unspecified illness. The Tribunal subsequently contacted the applicant and asked if he would like to proceed with the hearing via teleconference. The applicant agreed and the hearing proceeded via teleconference. Several attempts (via two provided phone numbers) were made by the Tribunal to contact the applicant’s representative. All of these attempts were unsuccessful (the phones appeared to be switched off). When asked at the hearing, the applicant stated that his representative was not planning to attend the scheduled in-person Tribunal hearing. The applicant stated that he was happy to proceed with the hearing without his representative present. The applicant was not represented in relation to the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant has a genuine intention to stay temporarily for the purposes of their medical treatment visa.

7. In assessing the application for review, the Tribunal had regard to all information on the Department’s file and on the Tribunal’s file.

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

8. 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.

9. As the applicant was born in 1989, the applicant has not yet turned 50. Given this finding, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

10. I note that the applicant has not submitted any supporting medical documentation to either the Department or the Tribunal, in support of his application.

11. In the present case, the applicant seeks the visa for the purposes of seeking medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212(2).

12. I note the following information related to the applicant’s migration history, outlined by the delegate in the Decision Record. This information was discussed with the applicant at the hearing.

    The applicant arrived in Australia almost twelve years ago on 03 April 2009 and has not departed since.

    Whilst onshore the applicant has attempted to remain in Australia permanently. The applicant appled for Combined Partner (subclasses 820/ 801) visa on 21 March 2012.

    The permanent application was refused on 01 April 2015.

    The applicant then remained in Australia and unsuccessfully sought review of the Department's decision to refuse both at AAT and judicially.

    The matter was finalised as "Minister Win" on 25 November 2019.

    The applicant last held a Bridging (subclass 050) visa that expired on 30 April 2019.

    The applicant did not comply with visa conditions and has remained in Australia as a long term Unlawful Non-Citizen until making an application for a Medical Treatment (subclass 602) visa on 05 January 2021.

    …

    Departmental records confirm that the applicant has unsuccessfully applied for a permanent visa onshore and has taken every opportunity to present their case or circumstances for review.

    The applicant has also not complied with visa conditions by remaining in Australia as a long term Unlawful Non-Citizen.

13. I discussed the applicant’s migration history with him at the hearing and he confirmed various key elements of it. When I asked the applicant if he had remained in Australia unlawfully from April 2019 until submitting the application for the Subclass 602 visa under review, he gave a vague and confused response stating words to the effect that he was not sure, he couldn’t remember and that he thought he did submit the visa application on time.

14. At the hearing, I asked the applicant if he had medical issues or conditions relevant to the review. The applicant gave a vague response stating words to the effect that he had been seeing a psychiatrist and the psychiatrist told him he has depression and anxiety. He said that he had problems sleeping. He said that he sees the psychiatrist every 6 to 8 weeks. I asked the applicant if he had any other medical issues relevant to the visa, and he said that he did not.

15. I asked the applicant why he had not submitted any documentary medical evidence in support of his application, either to the Department or to the Tribunal. He stated in response words to the effect that his agent had told him just to come straight to the hearing and had not asked him to provide any information.

16. I asked the applicant why he couldn’t seek treatment for these claimed medical issues in India. The applicant gave another vague response stating words to the effect that the waiting times in India were too long, that the treatment in Australia was better than it was in India, and that people in India enquire too much into your life and ‘they ask you questions you cannot answer’.

17. I note that the applicant has not suggested, and the Tribunal has no evidence before it, he would have difficulty travelling to India as a result of his claimed medical issues. I do not accept that the applicant has any medical issues that would make travel unreasonably difficulty for him. Based on the evidence before me, I find that the applicant would be able to manage any medical issues he has on his return to India.

18. The applicant’s long visa history clearly points to the applicant seeking to stay in Australia on an ongoing basis. I note that the applicant stated at the hearing that he wanted to stay in Australia only for ‘another couple of months’. I note that the applicant has been in Australia for well over 10 years, and has previously applied for a partner visa, to remain here permanently. I note that from the Departmental records outlined in the Decision Record, it appears also that the applicant’s extended time in Australia included a lengthy period of unlawfulness. After reviewing all of the information before the Tribunal, I do not accept that the applicant has a genuine intention to remain in Australia temporarily. The applicant’s visa history supports the Tribunal’s finding that the applicant is strategically utilising Australia’s visa pathways in order to extend his stay in Australia.

19. Accordingly, I find that the applicant does not have a genuine intention to remain in Australia temporarily for the purpose for which the visa is granted, namely, medical treatment.

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

21. 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

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

    Scott Clarey
    Member