Patel (Migration)

[2023] AATA 4872

Patel (Migration) [2023] AATA 4872 (2 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Bhumika Ghanshyambhai Patel

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

CASE NUMBER:  2304052

HOME AFFAIRS REFERENCE(S):          BCC2021/1867576

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 – 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 3 March 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 her husband, Mr Ghanshyambhai Ramabhai 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 Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

6. The Tribunal notes that the applicant and her husband previously appeared before the Tribunal on 10 January 2023 in respect to a review of the delegate’s decision. On 13 January 2023, the Tribunal remitted the decision for reconsideration with the direction that the applicant met cl 602.216 of Schedule 2 to the Regulations.

7. However, on 3 March 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:

   02/06/2010 Granted Student (subclass 573) visa, valid until 21/09/2010

   23/06/2010 Arrived Australia

   21/09/2010 Lodged second Student (subclass 572) visa

   23/09/2010 Granted second Student (subclass 572) visa. This visa ceased on 06/04/2011

   02/10/2010 Departed Australia

   08/12/2010 Returned to Australia

   30/05/2011 Granted a third Student (Subclass 572) visa. This visa ceased on 19/07/2011

   20/07/2011 Requested waiver of condition 8534 but subsequently withdrew

   13/08/2011 Departed Australia holding Bridging E (subclass 050) visa

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

   11/02/2012 Arrived in Australia

   11/06/2013 Departed Australia

   11/09/2013 Arrived in Australia

   15/01/2014 Lodged Temporary Work (subclass 457) visa application. This application was refused on 30/05/2014

   14/03/2014 Lodged fifth Student (subclass 572) visa. This visa was granted on 30/10/2014 and was valid until 12/06/2015

   08/05/2015 Lodged sixth Student (subclass 572) visa. This application was refused on 12/06/2015

   25/06/2015 Review commenced of Student (subclass 572) refusal at the Migration Review Tribunal (MRT)

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

   25/05/2017 Judicial Review Commenced – Federal Court

   02/09/2019 Judicial Review Result - Minister Win

   20/09/2019 Judicial Review Commenced – Full Federal Court

   16/03/2020 Judicial Review Result – Minister Win

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

   30/09/2021 Medical Treatment (subclass 602) visa refused

   20/10/2021 Review commenced of Medical Treatment (subclass 602) visa refusal at the Administrative Appeals Tribunal (AAT)

   13/01/2023 Review Set Aside – Remit with Direction for Medical Treatment (subclass 602) visa for reconsideration, with the direction that the applicant meets the subclause 602.216 of the Migration Regulations.

8. The delegate further stated:

   You initially arrived in Australia almost 13 years ago as the holder of a Student (Subclass 572) visa. Although you have made several short departures since that date, you have been in Australia continuously since 11 September 2013. You have provided information with your application that you have two children who have been born in Australia on 09 February 2013 and another one on 05 January 2018. Both children were born onshore.

   Your last Student visa ceased over six (6) years ago after which you have held an ongoing series of Bridging visas.

   You have not been granted a substantive visa since your last Student visa ceased and since then, you have had visa applications refused. You have sought merits review on two occasions and subsequently lodged an appeal with the Federal Court for one of those matters.

   You currently have an application for Medical Treatment (subclass 602) visa under consideration.

   The application was initially refused on 30 September 2021. You subsequently sought review of the Department’s decision and this has been remitted to the Department with the direction that you meet 602.216 of Schedule 2 of the Migration Regulations.

   Further consideration of the application has taken place and 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. You were afforded seven (7) days to respond. In response to this request, you have provided the following:

   (1) A short email dated 22 January 2023 explaining that you were having issues contacting your neurologist and containing a statement with details of the value of your parents’ home in India.

   No further evidence was submitted regarding your intention to be a genuine visitor or incentives to depart Australia.

   The bulk of your submission deals with your medical condition, which has been diagnosed and treated since 2000. Other factors in the submission may be summarised as follows:

   -    You have parents in India who own property;

   -    Your condition has been well controlled with medication since 2000.

   You have applied for a Medical Treatment visa on the basis that you will require ongoing and regular medical treatment. You requested to remain in Australia to receive medical treatment until 05 April 2022, however 10 months after this date you remain onshore. You have provided limited evidence from a medical practitioner to support your claim. Policy does not preclude a visa being granted in these circumstances; however, the objective of the applicant’s visit should be to leave Australia at the completion of the treatment. I am not satisfied that you have this intention.

   You have spent a continuous period of more than nine (9) years in Australia on temporary visas. You have a husband in Australia and have had two children while onshore. Based on the available evidence, I find that you maintain ongoing residence in Australia.

   You applied for a Student (Subclass 572) visa on 08 May 2015. When the application was refused, you pursued merits review at the MRT and the decision was affirmed by the Tribunal. You sought judicial review where the outcome of this Judicial Review result was Minister Win. Under Policy, Medical Treatment visas should not be granted to applicants who maintain ongoing residence in Australia and I see no reason to depart from Policy in your case.

9. In the hearing, the Tribunal spoke at length to the applicant and her husband about these issues. The applicant herself agreed that all of the visa history detailed in the decision record is correct. The Tribunal put to the applicant that the Tribunal may find that her visa history strongly indicated that she did not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. In response, the applicant indicated that if she had to go back to India that she was concerned as to who would be able to look after the children. However, it subsequently transpired in the hearing 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 has had since last speaking with her about this issue earlier this year. The applicant 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 health condition is stable, and that she is continuing to take her medication, Keppra. 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 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 she 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 her husband and her 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