Patel (Migration)

[2023] AATA 4875

Patel (Migration) [2023] AATA 4875 (2 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ghanshyambhai Ramabhai Patel

REPRESENTATIVE:  Mr Syed Hassan Ali Shah (MARN: 1803878)

CASE NUMBER:  2306190

HOME AFFAIRS REFERENCE(S):          BCC2021/1867604

MEMBER:Joseph Lindsay

DATE:2 August 2023

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 August 2023 at 3:40pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary entrant – wife’s health condition – visa history – length of time onshore – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 26 April 2023 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 29 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 applicant and his wife, Ms Bhumika Ghanshyambhai Patel, appeared before the Tribunal by video on 27 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. The applicant was represented in relation to the review, but the representative did not participate in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal notes that the applicant and his wife previously appeared before the Tribunal on 10 January 2023 in respect to a review of the delegate’s decision. In this situation, the applicant applied for the visa in order to be a support person for his wife.

6. On 13 January 2023, the Tribunal remitted the decision for reconsideration with the direction that the applicant’s wife met cl 602.216 of Schedule 2 to the Regulations.

7. However, on 26 April 2023, the delegate again refused to grant the visa to the applicant, this time on the basis that the applicant did not satisfy cl 602.215 of Schedule 2 to the Regulations. In summary, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. The delegate considered the applicant’s visa history in coming to this conclusion. The visa history, as detailed in the delegate’s decision, is as follows:

   09/02/2008 Granted Student (subclass 573) visa, valid until 19/05/2008

   26/03/2008 Arrived Australia

   19/05/2008 Granted further Student (subclass 573) visa, valid until 21/09/2010

   21/09/2010 Lodged application for Student (subclass 572) visa

   23/09/2010 Granted Student (subclass 572) visa, valid until 06/04/2011

   06/04/2011 Lodged application for Student (subclass 572) visa and requested waiver of condition 8534

   07/04/2011 Condition 8534 waived

   30/05/2011 Second Student (subclass 572) visa granted – valid until 19/07/2011

   19/07/2011 Lodged third application for Student (subclass 572) visa

   19/07/2011 Applicant counselled and chose not to proceed with application

   13/08/2011 Departed Australia as holder of Bridging E (subclass 050) visa

   12/01/2012 Granted Student (subclass 573) visa valid until 15/03/2014

   11/02/2012 Returned to Australia

   15/01/2014 Applied Temporary Work (subclass 457) visa

   14/03/2014 Applied Student (subclass 572) visa

   30/05/2014 Temporary Work (subclass 457) visa refused

   30/10/2014 Student (subclass 572) visa granted valid until 12/06/2015

   08/05/2015 Applied further Student (subclass 572) visa

   12/06/2015 Student (subclass 572) visa refused

   09/05/2017 Decision to refuse Student (subclass 572) visa affirmed at Migration Review Tribunal

   02/09/2019 Minister Win at judicial review

   18/03/2020 Dismissed in Full Federal Court

   29/09/2021 Lodged application for Medical Treatment (subclass 602) visa

   30/09/2021 Medical Treatment visa refused

   13/01/2023 Decision to refuse Medical Treatment visa remitted for reconsideration

8. The delegate further stated:

   You initially arrived in Australia more than 15 years ago, when you were 23 years old, as the holder of a Student (subclass 573) visa, and spent only 227 days outside of Australia since that date. You have spent the majority of your adult life in Australia.

   Your most recent Student visa ceased almost eight (8) years ago, after which you have held a series of Bridging visas associated with: (1) a further Student visa applications; (2) a Temporary Work visa application and (3) your current application for a Medical Treatment visa.

   You have not been granted a substantive visa since your most recent Student visa ceased on 12 June 2015. You have had visa applications refused. You have sought merits review, judicial review and have also lodged an appeal with the Full Federal Court for one of those matters.

   This application for a Medical Treatment (subclass 602) visa was initially refused and was remitted for reconsideration on 13 January 2023.

   On 16 January 2023, you were sent an invitation under section 57 of the Act to comment on your immigration history, and to provide evidence that you are a genuine visitor and that you have incentives to depart Australia if you were granted a visa. In response to this request, you have provided a short email statement dated 22 January 2023 and this has been considered.

9. In the hearing, the Tribunal spoke at length to the applicant and his wife. The Tribunal spoke to the applicant about his visa history. The Tribunal put to the applicant that the Tribunal may find that his visa history strongly indicated that he did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. In response, the applicant indicated that he was a temporary visa holder. However, when further questioned, the applicant appeared to concede that he was not intending to stay in Australia temporarily.  It was mentioned that, since the Tribunal made its previous decision on 13 January 2023, the applicant's daughter now has acquired Australian citizenship.

10. The Tribunal further inquired as to what medical treatment the applicant’s wife has had since last speaking with her about this issue earlier this year. The applicant’s wife indicated that her health is stable, but apart from having an operation to remove a hernia, there has been no substantial change in her medical condition. She indicated that she is still taking Keppra.

    Analysis and Findings

11. The Tribunal has carefully considered the information made available to the Tribunal and makes the following findings.

12. In respect to her medical treatment, the Tribunal accepts that the applicant's wife’s health condition is stable, and that she is continuing to take her medication, Keppra. However, the Tribunal is not satisfied that the applicant’s wife is gravely ill or is receiving intensive or critical care. The Tribunal is not satisfied that the applicant’s wife must remain in Australia for ongoing consultation. The Tribunal is not satisfied that the applicant’s wife will not be able to obtain her medication, Keppra, on her return to India.

13. The Tribunal accepts that the applicant's visa history as detailed in the delegate’s decision is correct. The Tribunal accepts that the applicant's visa history strongly indicates that he does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal accepts that the applicant and his wife and their children have every intention of staying in Australia permanently, and the Tribunal’s finding in this respect is reinforced by the fact that the applicant's daughter has now achieved Australian citizenship. Given the above findings, cl 602.215 is not met.

14. 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

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

    Joseph Lindsay
    Member