Mistry (Migration)

[2022] AATA 5070

Mistry (Migration) [2022] AATA 5070 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ketulben Kirankumar Mistry

CASE NUMBER:  2108759

HOME AFFAIRS REFERENCE(S):          BCC2021/1197377

MEMBER:Joseph Lindsay

DATE:2 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 2 November 2022 at 1:11pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – intention to comply with visa conditions – lengthy stay in Australia – period of unlawful residence – permanent visa application and judicial review – limited medical evidence – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.211, 602.212, 602.215

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 on 16 June 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 4 June 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 applicant participated in a video hearing with the Tribunal on 28 October 2022 to give evidence and present arguments. The Tribunal wishes to make clear that even though the applicant indicated on her hearing invitation that she intended to provide documents and have witnesses at the hearing, she did not provide further documents for the purposes of the hearing and her claims in respect to her visa application, and she did not have any witnesses give evidence to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Is the visit for medical or related purposes?

5. Clause 602.211 requires that the applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes. Clause 602.215 requires:

   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.

6. In the hearing, the Tribunal noted that the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal spoke about the information in the delegate’s decision.

7. The delegate’s decision stated:

   Departmental records demonstrate that:

   The applicant arrived in Australia 15 years ago on 08 June 2006 as the holder of Visitor (subclass 676) visa valid for a temporary stay in Australia as a visitor for three (3) Months

   The applicant has never departed since.

   Whilst onshore the applicant has demonstrated their intention to remain permanently in Australia by applying for [a permanent visa]. The application was refused, and the applicant remained in Australia and unsuccessfully sought review of the Department's decision both AAT and judicially.

   The applicant has also sought Ministerial Intervention regarding their immigration status on several occasions.

   The applicant's last Bridging (subclass 050) visa expired over ten years ago on 10 June 2011 and they have remained in Australia as a long term Unlawful Non-Citizen until the present.

   The applicant has been onshore without holding a substantive visa since 09 September 2006.

8. In the hearing, the applicant told the Tribunal that the information in the delegate’s decision record is correct. The Tribunal put to the applicant that in her visa application she indicated that she had helicobacter as well as major depression, and that she needed antibiotics, repeat tests, and that she would also need a psychologist and a psychiatrist. In the hearing, the applicant stated that her current medical issues were that she had anxiety, a urinary tract infection, and that she had “bacteria” that makes black spots on her body.

9. When asked what medical treatment she was currently receiving, the applicant said she had an appointment soon. When asked if she was taking any medication, the applicant indicated that she used some cream, and she took some tablets. She also indicated she was going to do some tests on her breathing. However, when asked if she had provided further updated medical information to the Tribunal, she indicated she had not provided such information.

10. The Tribunal put to the applicant that the Tribunal may not be satisfied that she intended to comply with visa conditions associated with the visa, or that she was a genuine temporary entrant or that she had sufficient incentive to depart Australia if a visa were to be approved given:

    a. she arrived in Australia 15 years ago on 08 June 2006 as the holder of Visitor (subclass 676) visa valid for a temporary stay in Australia as a visitor for three (3) months and that she has never departed Australia since she first arrived;

    b. she had previously applied for [a permanent visa], indicating her intent to stay permanently in Australia; and

    c.she had been in Australia unlawfully for approximately a decade. 

11. In response, the applicant said that she applied for [a permanent visa] because she wanted to stay in Australia. However, she said that after her treatment she would return to India. She said she had separated from her husband. 

    Analysis and Findings

12. The Tribunal has carefully considered the information made available to the Tribunal. The Tribunal accepts that the applicant currently has some health issues, including helicobacter, depression, anxiety, a urinary tract infection, a bacterium that makes black spots on her body, and issues with her breathing. The Tribunal accepts that, for medical treatment, the applicant has been using some cream and taking tablets.

13. However, the Tribunal is not satisfied that the applicant is gravely ill or is receiving intensive or critical care. The Tribunal is not satisfied that the applicant must remain in Australia for ongoing consultation. The Tribunal is not satisfied that the applicant will not be able to obtain appropriate health treatment on her return to India.

14. The Tribunal is not satisfied that the applicant intends to comply with visa conditions associated with the visa, or that she is a genuine temporary entrant or that she has sufficient incentive to depart Australia if a visa were to be approved given:

    a. she arrived in Australia 15 years ago on 08 June 2006 as the holder of Visitor (subclass 676) visa valid for a temporary stay in Australia as a visitor for three (3) months and that she has never departed Australia since she first arrived;

    b. she had previously applied for [a permanent visa], indicating her intent to stay permanently in Australia; and

    c.she had been in Australia unlawfully for approximately a decade. 

15. The applicant’s responses, that she applied for [a permanent visa] because she wanted to stay in Australia and that after her treatment she will return to India, and that she had separated from her husband, did not allay the Tribunal’s concerns.

16. In respect to the applicant’s visa history, the Tribunal places high weight on her history and finds that this evidence strongly counters the applicant’s claims that she genuinely intends to stay temporarily in Australia.

17. In carefully considering and weighing the above factors, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl 602.215 are not met.

18. 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

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

    Joseph Lindsay
    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).