Patel (Migration)

[2022] AATA 467

Patel (Migration) [2022] AATA 467 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Arpanaben Yogeshkumar Patel

CASE NUMBER:  2015033

HOME AFFAIRS REFERENCE(S):          BCC2020/2275028

MEMBER:Andrew McLean Williams

DATE:17 February 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 17 February 2022 at 11:26am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – temporary stay for purposes of visa – visa and residence history – long stay, including period as unlawful non-citizen and unsuccessful application for protection visa – minimal evidence of condition and proposed treatment – joint hearing with husband’s – 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 18 September 2020, refusing 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 10 September 2020. 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 Delegate refused to grant the Applicant the visa because the Delegate could not be satisfied that the Applicant only intended to remain in Australia temporarily, for purposes of medical treatment. 

4. The Applicant appeared before the Tribunal on 17 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s spouse Yogeshkumar Kashiram Patel, whom had lodged an identical application for review of his own Subclass 602 visa application, which was heard at the same time as the hearing of this, his partner’s application for review. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

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 intends to remain only temporarily, for medical treatment purposes.

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

7. Clause 602.215 requires that the Applicant genuinely intends to stay only 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.

8. In this case, the preconditions for cl.602.212(6) do not apply and accordingly the requirement in cl 602.215 do apply to the Applicant.

9. The Applicant seeks the visa for the purposes of medical treatment for generalised anxiety disorder and depression.  The visa application is supported by a Form 1507 medical certificate from a Dr Sanghmitra Bilwani, as well as a one line medical report, dated 17 August 2020, in which Dr Bilwani says that the Applicant has generalised anxiety disorder and depression, and “has been commenced on appropriate treatment”.  That is the entirety of the medical evidence given by the Applicant in support of her visa application.

10. The Applicant arrived in Australia on 25 September 2008 and has not departed since that time.  The Applicant has spent a considerable period of time, until 23 December 2014, in Australia as an unlawful non-citizen. 

11. On 19 December 2014 the Applicant also lodged an application for a protection visa, yet this was refused on 8 October 2014.  This was then the subject of an unsuccessful application for review before this Tribunal, as well as unsuccessful appeals to both the Federal Court and the Full Federal Court.  In December 2019 the Applicant also sought Ministerial intervention, yet the matter was declined for referral.  Shortly after the unsuccessful outcome in the Full Federal Court, the Applicant also attempted to make a second protection visa application, yet this was refused, it being a second application.  Only after all of this was this medical visa application submitted. 

12. All of the matters described in the preceding paragraphs was put to the Applicant as now giving rise to a very strong inference that the Applicant did not wish to stay in Australia only temporarily for the purposes of a medical visa.  In response, the Applicant indicated that she and her partner were telling the truth.  The Applicant’s partner had informed the Tribunal that they wished to stay in Australia long term, and to have work rights, and raise their son, yet that they were also depressed by their circumstances.

13. Nothing said or submitted by the Applicant in the context of the Applicant’s past visa history now affords the Tribunal with any confidence that the Applicant will comply with the requirements of cl.602.215.

14. Given the above findings, cl 602.215 is clearly not met.

15. 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

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

    Andrew McLean Williams
    Member