Mohan Singh (Migration)

Mohan Singh (Migration) [2022] AATA 4645 (29 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohan Singh
CASE NUMBER:  2113423
HOME AFFAIRS REFERENCE(S):          BCC2021/1697603
MEMBER:Rachel Da Costa
DATE:29 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 29 November 2022 at 2:48pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – business and land ownership in home country – period of unlawful residence – limited medical evidence – maintaining ongoing residence in in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215
CASES
Hasran v MIAC [2010] FCAFC 40
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 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).
The applicant applied for the visa on 31 August 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).
The delegate refused to grant the applicant the visa because the delegate found that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence and they do not genuinely intend to remain in Australia on a temporary basis.
On 2 October 2021, the applicant lodged his application for review of the delegate’s decision. He included a copy of the delegate’s decision with his application for review.
CLAIMS AND EVIDENCE
Background
In his Medical Treatment visa application form, the applicant provides the following information. He is 73 years old and is a citizen of India. The applicant wishes to remain in Australia for medical care from 31 August 2021 to 10 October 2021. The treatment is for NIDDM[1] and hypertension. He is supported financially by his son, who is an Australian citizen. The applicant has overstayed a previous visa because he overlooked the visa expiry date.
[1] NIDDM is an abbreviation for non-insulin-dependent diabetes mellitus, otherwise known as Type 2 diabetes. See, eg Type 2 diabetes - Symptoms and causes - Mayo Clinic (accessed 29 November 2022)
The Medical Treatment visa application form was accompanied by a bank statement for the applicant’s son, a copy of the bio-data page of the Australian passport of the applicant’s son, a copy of the applicant’s Indian identity card and a copy of the bio-data page of the applicant’s passport, issued by the Republic of India.
In the Form 1507 that accompanied the Medical Treatment visa application form, it states that the medical conditions requiring treatment are “NIDDM and hypertension” and the treatment information lists four medications, “Metformin”, “Glimepride”, “Pioglitazone” and “Twysta”. The form was completed by Dr Li-Chen Zhang, Reservoir Medical Centre, Reservoir, Victoria.
Request for more information
On 1 September 2021, the Department wrote to the applicant requesting he provide evidence of intention to be a genuine temporary entrant and incentive to depart Australia.
The detail of the request explains that the amount of time spent by the applicant in Australia already gives rise to concern about the applicant’s intention to be a genuine temporary entrant and their incentive to return to their home country.
On 8 October 2021, the applicant responded in writing to the Department’s request. The letter, which is from the applicant and his wife, makes the following points:
·     They are a well-settled family in India and have assets there including a house and agricultural land. In their absence, it is being looked after by employees. The doctor’s advice is that their treatment will take 3 to 6 months and on completion of their treatment they will return back to India. Both their children are well settled in Australia.
·     They have relatives and family in India and are very close to them. They wish to stay the rest of their lives in India after getting their medical treatment.
·     They have a lot of social ties in India. Their family and the memories there are the strongest incentives for them to return. They are also morally responsible towards their society and are responsible for looking after their family business.
·     India is safe and where they live in Punjab is safe too.
The letter attached a document dated 2 September 2021 that certifies the applicant owns a house in Jalandhar.
The delegate’s decision
On 14 September 2021, the delegate made their decision refusing the applicant’s application for a Medical Treatment visa.
The delegate expressed concern about the amount of time already spent by the applicant in Australia and his migration history and explained that this gave rise to a concern about the applicant’s intention to be a genuine temporary entrant and their incentive to return to their home country.
The delegate explained that the applicant last arrived in Australia on 30 May 2019 and has remained in Australia using a succession of temporary visas since then. The applicant has had a further application for a Visitor visa (subclass 600) refused and has overstayed as an unlawful non-citizen. With the Medical Treatment visa, the applicant requests to remain in Australia until 10 October 2021, which, if approved, would take the applicant’s total stay in Australia using temporary visas and absent from their home country to almost two and a half years. The delegate considered that this raised a significant concern.
The delegate noted the response from the applicant to the request for more information, which describes their circumstances in their home country and refers to property ownership. The delegate noted that the applicant has already left the property in their home country and intends to remain away from it for a longer period. The delegate also noted there was no further evidence provided in support of the claims made regarding being a genuine temporary entrant and the applicant’s incentive to depart Australia.
Based on the claims and supporting evidence provided by the applicant, the delegate found that the applicant is attempting to use the Medical Treatment visa pathway as a means to maintain ongoing residence and they do not genuinely intend to remain in Australia on a temporary basis. The delegate also found that the applicant had not demonstrated that they are unfit to depart Australia.
Evidence before the Tribunal
On 3 November 2022, the Tribunal wrote to the applicant pursuant to s 359. The letter invited the applicant to provide the following information in writing to the Tribunal:
·What medical treatment did you require, and when did the medical treatment you have undertaken end?
·If it has not ended, is it due to end? Please provide evidence of when it will end.
·Noting that you have remained in Australia since 2019 on a series of temporary visas, please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
·As it appears you are over 50 years of age, if you have applied for a permanent visa, did you meet all the criteria for the grant of the visa other than the public interest criteria related to health?
The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 17 November 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provide the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
On 18 November 2022, the applicant wrote to the Tribunal in the following terms:
I, Mohan Singh, am writing this letter to request the AAT to grant me an extension to provide
the documents requested by AAT on 03/11/2022. Firstly, I apologize for being late to respond. I was going through my medical situation and was not well due to which I happened to overlook the submission date. I am still undergoing my treatments and am in the process to finalize the medical treatment plans as you requested. Thus, I humbly request you to grant me an extension of at least two weeks to finalize all the documents. I apologize once again for the delayed response.
He provided a number of documents with his letter:
·     appointment letter dated 14 November 2022 from Austin Health for an appointment on 23 November 2022 at Heidelberg Repatriation Hospital in the Podiatry Clinic;
·     appointment letter dated 14 November 2022 from Austin Health for an appointment on 30 November 2022 at Heidelberg Repatriation Hospital in the Vascular Surg Clinic;
·     tax invoice dated 29 December 2021 from Dr Li-Chen Zhang for an appointment for the applicant on 29 December 2021 at Reservoir Medical Centre, Reservoir, Victoria;
·     memorandum of fees for pathology medical services addressed to the applicant dated 4 February 2022;
The same day, the Tribunal responded to the applicant in writing explaining that it did not have the power to extend the deadline now that it had passed, and that it intended to proceed to a decision. The Tribunal informed the applicant that he should provide any further information that he wished the Tribunal to consider by 25 November 2022. As at the date of this decision, no further information has been received from the applicant.
The Tribunal has decided to proceed to decision without taking further steps to obtain the information. The Tribunal’s reasons for proceeding in this way are as follows:
·     in its letter dated 3 November 2022, the Tribunal gave the applicant two weeks to provide the information or request an extension of time and the Tribunal’s letter clearly set out the consequences of not providing the information in time;
·     the applicant has not provided medical or other evidence to explain how and why his “medical situation” and being “not well” caused him to overlook the submission date in the Tribunal’s letter, or why he was not able to contact the Tribunal to request an extension of time before the deadline indicated in the Tribunal’s letter. In this regard, the Tribunal notes that the applicant lives with his son who is an Australian citizen and the Tribunal expects that in light of the applicant’s age and circumstances, including indicating to the Tribunal that he required an interpreter in the Punjabi language, his son would be assisting him with his application and could have assisted him to contact the Tribunal or his son could have contacted the Tribunal on the applicant’s behalf before the deadline if he was unable to do so due to illness;
·     the extended timeframe requested by the applicant of “at least two weeks” to finalise documents is vague and open-ended;
·     the applicant lodged his application for a Medical Treatment visa over one year ago and the date until which he indicated he wished to remain in Australia for medical care (10 October 2021) has long passed;
·     by indicating to the applicant that he should provide any further information he wished the Tribunal to consider by 25 November 2022, the Tribunal effectively granted the applicant an extension of time of 7 days;
·     the Tribunal has concerns about the applicant’s migration history and whether he has a genuine intention to stay temporarily in Australia for the purpose of medical treatment or whether he is using the Medical Treatment visa application process as a means of maintaining ongoing residence in in Australia. This is considered further below;
·     the Tribunal’s decision to proceed is in accordance with the Act.
In deciding to proceed to decision without taking further steps to obtain the information, the Tribunal has also taken into account its objectives of providing a mechanism of review that is that is accessible, fair, just, economical and quick.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
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.
Is the applicant medically unfit to depart Australia?
Clause 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.
The Tribunal accepts that the applicant is in Australia. Based on the information contained in the bio-data page of the applicant’s passport, a copy of which was provided to the Tribunal, the Tribunal accepts that the applicant is 73 years of age.
Despite being asked in the Tribunal’s letter dated 3 November 2022 whether, if he had applied for a permanent visa, he met all the criteria for the grant of the visa other than the public interest criteria related to health, the applicant did not respond to this question in the material he provided to the Tribunal.
There is no evidence before the Tribunal to indicate that the applicant has applied for a permanent visa while in Australia. There is also no evidence before the Tribunal to indicate that the applicant 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. The Tribunal finds that the applicant is in Australia and has turned 50, but that he is not medically unfit to depart Australia.
Accordingly, the requirements of cl 602.212(6) are not met.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
In the present case, the visa applicant seeks the visa for the purposes of medical treatment or consultation. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.
The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. Based on the evidence before the Tribunal, the last substantive visa held by the applicant was a Visitor visa. There is no evidence to suggest that the applicant did not comply with the conditions of his last substantive visa or with the conditions of subsequent bridging visas he has held, although the Tribunal notes that he has spent time in Australia as an unlawful non-citizen.
The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject. Medical treatment visas are subject to condition 8201 (no studies) and may be subject to condition 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 to suggest that the applicant intends to study in Australia if he is granted the visa. The Tribunal accepts that the applicant will comply with condition 8201. In relation to condition 8503, the Tribunal notes that the applicant applied unsuccessfully for a further Visitor visa, has spent time in Australia without a visa and has applied for a Medical Treatment visa. The Tribunal considers that the applicant is motivated to remain in Australia and it is possible, in light of his history and circumstances, that he will take steps to obtain a waiver of this condition.
The Tribunal has considered other matters relevant to assessing the applicant’s intention based on the evidence before it.
Based on the information contained in her Medical Treatment visa application form, and reflected in the delegate’s decision, the applicant indicated that he wished to stay in Australia until 10 October 2021 for medical treatment for NIDDM and hypertension. As stated above, in the Tribunal’s letter to the applicant dated 3 November 2022, the applicant was invited to provide the following information in writing:
· What medical treatment did you require, and when did the medical treatment you have undertaken end?
· If it has not ended, is it due to end? Please provide evidence of when it will end.
The information provided by the applicant to the Tribunal does not address these questions. While the applicant has provided an invoice for a consultation on 29 December 2021 with Dr Zhang, a memorandum of fees for pathology dated 4 February 2022 and two appointment letters for medical appointments on 23 and 30 November 2022, these documents do not explain what medical treatment the applicant requires, or when the medical treatment he appears to be undertaking is due to end.
The Tribunal’s letter to the applicant also noted that he has remained in Australia since 2019 on a series of temporary visas and asked him to provide any other evidence which indicates that he has a genuine intention to stay temporarily in Australia for the purpose of medical treatment. The information provided by the applicant does not address this question.
The applicant’s migration history, as described in the delegate’s decision, indicates that the applicant arrived in Australia on 30 May 2019 as the holder of a Visitor visa, that he has remained in Australia using a succession of temporary visas, and that he has spent time in Australia as an unlawful non-citizen. With his Medical Treatment visa application and application for review, the applicant has now been continuously in Australia for almost three and a half years using temporary visas. There is no evidence before the Tribunal to indicate that the applicant has made plans to depart Australia, more than one year after the proposed date for the end of his stay, namely 10 October 2021. Accordingly, the applicant’s migration and visa history raises a concern for the Tribunal about whether he genuinely intends to stay temporarily in Australia.
Further, the applicant’s personal circumstances raise a concern for the Tribunal. The applicant states in his Medical Treatment visa application form that he is being financially supported by his son, who is an Australian citizen. In his letter to the Department dated 8 October 2021, the applicant refers to the fact that both his children live in Australia. He also refers to having strong family ties to relatives in India, to owning property there, that Punjab is a safe place to live, and that he and his wife wish to return to India after their medical treatment. The delegate noted in their decision that the applicant has already left the property in his home country and intended to remain away from it for a longer period, indicating a concern about whether this property was a sufficient incentive for the applicant to depart Australia and return to India. The Tribunal shares this concern that the applicant’s incentive to remain in Australia, namely, the presence of both his children, is strong and outweighs his claimed incentives to depart Australia and return to India if the visa were to be approved.

Despite being invited to, the applicant has not provided any other evidence to the Tribunal to indicate that he has a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
Having considered all the applicant’s evidence, the Tribunal considers that he has not provided probative evidence of an intention to remain temporarily in Australia. The Tribunal does not accept that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment. While the applicant has provided some evidence that he has, and is, receiving medical treatment in Australia, the nature of the treatment is not clear and he has not provided any probative evidence about when the medical treatment is due to end. The applicant’s migration history indicates that he has remained in Australia for over three years on a series of temporary visas and has spent time in Australia as an unlawful non-citizen. Further, the applicant has now been living away from India and in Australia for an extended period of time, which is where his two children live and he is being financially supported by his son. The Tribunal considers that the applicant has strong incentives to remain in Australia.
While it appears that the applicant has complied with the conditions of his past visas (albeit noting that he has spent time in Australia without a valid visa) and there is no evidence to suggest that the applicant will fail to comply with any conditions that might be attached to a Medical Treatment visa, in the Tribunal’s view these factors do not outweigh its concerns about whether the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
Findings
Based on the evidence before it, the Tribunal finds that the applicant is attempting to use the Medical Treatment visa pathway as a means to maintain ongoing residence in Australia and he does not genuinely intend to remain in Australia temporarily. The Tribunal finds that the applicant’s migration and visa history, as well as his personal circumstances, suggest that he intends to remain in Australia, and that he has strong incentives to do so. Accordingly, the Tribunal finds 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.
Given the above findings, cl 602.215 is not met.
Conclusion
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Rachel Da Costa
Member

[2022] AATA 4645

29 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Appeal