Prajapati (Migration)

[2023] AATA 3565

Prajapati (Migration) [2023] AATA 3565 (12 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nikitaben Vinodbhai Prajapati

Miss Shivya Prajapati

REPRESENTATIVE:  Mr Tanveer Singh (MARN: 1173217)

CASE NUMBERS:  2216292 and 2216293

HOME AFFAIRS REFERENCE(S):          BCC2022/4099152 and BCC2022/4099710

MEMBER:Naomi Schmitz

DATE:12 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Medical Treatment (Visitor) (Class UB) visas.

Statement made on 12 October 2023 at 12:53pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – support person for family member – family member refused a Medical Treatment visa – no family or close friends in Australia – reasonableness of adjournment – decision under review affirmed

LEGISLATION

Administrative Appeals Act 1975, s 2A
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 602.212

CASES

Kumar v MICMSMA [2022] FedCFamC2G 593
MIBP v Haq [2019] FCAFC 7
Singh v MIAC [2013] FCA 669          

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. These are applications for review of decisions made by a delegate of the Minister for Home Affairs on 19 October 2022 to refuse to grant the applicants Medical Treatment (Visitor) (Class UB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, a mother and daughter, applied for the visas on 30 September 2022. 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 applicants the visas because at the time of each decision, each applicant did not meet the requirements in one of subclauses (2) to (8) of clause 602.212.

4. On 7 November 2022, the applicants made applications for review at the Tribunal concerning each of the delegate’s refusal decisions. A copy of the delegate’s decision record was provided for each of the applications for review.

5. On 15 September 2023, the Tribunal invited each of the applicants under s 359(2) of the Act to provide the Tribunal with information to address the following:

   You are invited to provide the following information in writing:

   1. You are invited to provide information that demonstrates that you meet the requirements of one of the subclauses in clause 602.212(2) to (8) in Schedule 2 to the Migration Regulations 1994 at the time of the Tribunal’s decision.

   A copy of clause 602.212 is set out in the attachment to this letter.

   2.     You indicated in your application for a Medical Treatment visa that you are supporting a person who either holds, or is applying for, a medical treatment visa.

   You are invited to provide information which shows that you are supporting a person who either holds, or is applying for, a medical treatment visa.

6. The request for information for each applicant advised that if the applicant did not provide information pursuant to s 359(2) in writing by 2 October 2023, the applicant would lose any entitlement they might have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal would make a decision on the information it had without taking any further steps to allow or enable the applicant to appear at the Tribunal: s 360(3) of the Act.

7. On 20 September 2023, the Tribunal invited each of the applicants under s.360(1) of the Act to appear at a combined hearing before the Tribunal commencing at 11:00am on 6 October 2023 to give evidence and present arguments relating to the issues arising in relation to the decisions under review. The Tribunal was required to do this because it had considered the information it had before it and was unable to make a decision favourable in relation to each of the respective applicants.

8. On 28 September 2023, the Tribunal received the following information in relation to each application for review:

   a.A handwritten letter from Dr PMB Gamboni dated 26 September 2023 stating:

   Mr Prajapati …has been suffering from anxiety and depression for which he is being treated. It is very important that he has his wife and daughter living with him otherwise he would be more depressed and anxious.

   b.Statutory declaration of Nikitaben Prajapati dated 27 September 2023 stating:

   It is important for my daughter Shivya Prajapti and I to stay with my husband Jaymin Prajapti. He is currently undergoing treatment for his depression. It is important that we stay together during his treatment as our daughter is a minor and requires the support from both parents. For the benefit of my family it is important that we remain together as that would support my husband's treatment and our daughter will be with both her parents.

   c.A response to hearing invitation signed by Mrs Prajapati on 27 September 2023, indicating that she and her husband, Mr Prajapati would participate at the hearing and that the representative would not be in attendance. She also indicated that she and her husband would not experience any difficulty participating in the hearing or that the hearing could not be conducted as arranged in the hearing invitation.

9. Mrs Nikitaben Prajapati (hereafter referred to as the first named applicant) appeared before the Tribunal on 6 October 2023 by Microsoft Teams technology to give evidence and present arguments. The Tribunal also received oral evidence from her husband, the person seeking medical treatment, Mr Jaymin Prajapati (hereafter referred to as Mr Prajapati). As the first named applicant’s daughter, Miss Shivya Prajapati, (hereafter referred to as the second named applicant) is a minor aged six years the Tribunal Member did not consider it appropriate that she give evidence and the first named applicant gave evidence on her daughter’s behalf.

10. The first named applicant and the second named applicant were represented in relation to the review. The representative did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 first named applicant and second named applicant are the support persons of Mr Prajapti, or someone else who has a Medical Treatment visa or whether the applicants themselves require a Medical Treatment visa.

13. This decision should be read in conjunction with that made by the Tribunal in case number 2216290 in respect of the primary applicant, Mr Prajapati. The Tribunal, constituted by Member Cody, affirmed the decision under review on 14 July 2023 at 7:46am.[1]

    [1] Email from the representative dated 28 July 2023 requesting that the first and second named applicants have a combined hearing and that they are dependents of Mr Prajapati case number 2216290.

14. In the first named applicant’s and second named applicants’ visa applications, they did not allege that that they were seeking medical treatment pursuant to subclause 602.212(2) and did not allege that they sought to donate their organ(s) for transplant in Australia under subclause 602.212(3). The first named applicant and second named applicant each indicated that they applied for the Medical Treatment (Support Person) visa as a person who would provide support to a person seeking medical treatment in Australia pursuant to subclause 602.212(4). In support a Form 1507 dated 20 September 2022 relating to Mr Prajapati was provided. It specified the medical condition requiring treatment ‘depression’ and treatment information recorded was ‘anti-depressant medication’. The first named applicant’s and second named applicant’s intentions regarding the Medical Treatment (Support Person) visa were respectively based on Mr Prajapati’s medical treatment.[2] As Mr Prajapati was not the holder of a Subclass 602 Medical Treatment visa at the time of decision, the applicants’ visas were both refused.[3]

    [2] Departmental files of first named applicant and second named applicant. 

    [3] Delegate’s decision record for the first named applicant and second named applicant.

    FINDINGS

15. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl 602.212(2)-(8). These relate to the basis for which the stay in Australia is required.

16. Relevantly to this matter, cl 602.212(4) relates to the first and second named applicants who have each applied for a Medical Treatment visa as support persons to Mr Prajapati. Broadly speaking, it requires that the applicant seeks to provide emotional and other support to an applicant who satisfies the requirement of a Subclass 602 Medical Treatment visa, and the applicant satisfies the public interest criterion 4005.

17. The first named applicant confirmed that she and her daughter (the second named applicant) were not seeking medical treatment or that arrangements have been concluded to carry out such treatment. No medical evidence was provided in support. To the contrary, the first named applicant gave evidence that she is the household breadwinner working to support her husband and daughter, with the second named applicant attending kindergarten. As such, the first named applicant and second named applicant cannot meet subclause (2).

18. The first named applicant did not claim that she or her daughter sought to donate an organ(s) for transplant in Australia. No medical evidence was provided in support. As such, subclause (3) cannot be met.

19. The first named applicant gave evidence that she and her daughter sought the Medical Treatment visa pursuant to clause 602.212(4) to give her husband (her daughter’s father) emotional and other support. She claimed because Mr Prajapati is suffering from depression, that his memory has been affected and that he needed her and her daughter for support. She also claimed this was due to there being no family or close friends in Australia.

20. Under the natural justice provisions pursuant to s 359AA of the Act, the Tribunal Member put to the first named applicant her husband’s migration records which showed that he is not currently the holder of a Medical Treatment Subclass 602 visa but was the holder of a Bridging visa Subclass 050. The Tribunal Member explained that this would be a reason or a part of the reason for affirming the decisions under review because in order to satisfy subclause (4) the person the applicant seeks to support must be the holder of a Medical Treatment visa. The first named applicant was advised that she may seek additional time to comment on or respond to the information. The first named applicant asked that the Tribunal Member repeat the s 359AA information, which the Tribunal Member accommodated.

21. The first named applicant asked that she be permitted to seek further legal advice from her representative but stated that he was currently overseas and unavailable. The Tribunal Member asked the first named applicant when the representative would return to which the first named applicant replied that she ‘did not know the exact date’. She claimed the representative departed Australia on 29 September 2023 and believed he would be travelling for two weeks.

22. The Tribunal Member carefully considered the first named applicant’s request for additional time to comment on or respond to the information at hearing but did not consider the request reasonable. The Tribunal Member also considered the request in the context of the history of the proceedings; whether the amount of extra time sought was reasonable, having regard to the Tribunal’s statutory objective of providing an expeditious mechanism of review;[4] if an adjournment is sought to obtain further information or documents, whether they are likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant; and whether the applicant is likely to be able to advance their case with the benefit of the requested adjournment. The Tribunal Member also had regard to various leading appellate court authorities. Oral reasons were provided at hearing and the Tribunal Member advised that the reasons would also be provided in a written decision.

    [4] s 2A of the Administrative Appeals Act 1975 (Cth).

23. The Tribunal Member did not regard the request to wait until the representative returned to Australia as reasonable, given the first named applicant did not know with any certainty when he would return to provide her with legal advice. Significantly, each applicant had been requested to provide information which identified how they satisfied cl 602.212(4) in the Tribunal’s invitations to provide information dated 15 September 2023 referred to in [5] above, which were sent 22 days before the hearing and therefore the Tribunal considered that each applicant had had ample time and opportunity to present their cases and obtain legal advice. The Tribunal further notes that these invitations were sent prior to their representative’s departure and the first named applicant could have sought legal advice on this issue before his departure. It was also an issue which was one of the bases for the delegate’s refusing each visa application, with each application for review being accompanied by the relevant decision record of the delegate. No explanation was proffered by the first named applicant as to why legal advice had not been obtained before the hearing. The first named applicant also indicated to the Tribunal in her response to hearing invitation referred to in [8c] above, that the representative would not be in attendance at the hearing and therefore she knew her representative would not be present at hearing. 

24. Significantly, the applicants had been put on notice of the relevant issue since their visa refusals approximately one year ago on 19 October 2022. The Tribunal Member also noted the applicants had applied for the visas over a year ago on 30 September 2022 and therefore had had ample time and opportunity to provide information as to how they could satisfy subclause (4).

25. Further, migration records showed that Mr Prajapti was not the holder of a Medical Treatment visa. Importantly, at hearing, Mr Prajapati confirmed that he was not the holder of a Medical Treatment visa but a Bridging visa discussed further in [30] below. This factor strongly militated against adjourning the matter, as it was not the case that further evidence could be obtained to show that Mr Prajapati was the holder of a Medical Treatment visa and could therefore advance the applicants’ cases. An adjournment of the reviews in this instance could not be considered reasonable and would undermine the Tribunal’s statutory objective of providing an expeditious mechanism of review.

26. The Tribunal has carefully considered various appellate court authorities including Kumar v MICMSMA[5] where the court found the Tribunal’s refusal of an adjournment of one week to allow the applicant to obtain another Confirmation of Enrolment (CoE) was unreasonable. In that case, the applicant requested a short adjournment due to his CoE lapsing shortly before hearing (one business day). That decision can be distinguished from the circumstances in the current proceedings, as Mr Prajapti was not the holder of a Medical Treatment visa both at the time of application and at the time of decision and accordingly this has been a long-term and ongoing issue.

    [5] Kumar v MICMSMA [2022] FedCFamC2G 593.

27. It is also unknown when, if ever, Mr Prajapati will be the holder of a Medical Treatment visa so that the applicants can satisfy the requirements of the visa and any assumption that he will be granted such a visa is speculative. In MIBP v Haq,[6] the Full Federal Court considered the role of the Tribunal’s reasons in assessing legal unreasonableness, with a majority of the Court finding that it was not legally unreasonable for the Tribunal to refuse to adjourn the hearing and defer making its decision where its reasons disclosed an intelligible and rational justification. In Hag, the justification being that even if the postponement request was granted, it was uncertain if and when the applicant would be able to place himself in a position to satisfy the requirements for the visa based on his oral evidence at hearing.

    [6] MIBP v Haq [2019] FCAFC 7.

28. Further in Singh v MIAC,[7] the Court found no error in the Tribunal’s decision not to allow the applicant more time to procure a necessary CoE in circumstances where the delegate had made very clear to the applicant the significance of his failure to produce a current CoE, the Tribunal’s invitation to hearing had specifically asked the applicant to provide a current CoE at least two days before the hearing, there was no explanation as to why an up-to-date CoE had not been obtained and nor had the applicant asked that the Tribunal hearing be adjourned or suggest that something was happening in respect of the CoE which would justify an adjournment. These are factors that have been discussed in in [23] of this decision record. Like Singh, the Tribunal further notes that there was no adjournment request prior to the hearing, to indicate that the applicants required further time to obtain information in response to the Tribunal’s invitation to obtain information.

    [7] Singh v MIAC [2013] FCA 669.

29. The Tribunal Member also considered that the first named applicant had ample time during the hearing to explain how she met subclause (4) with the adverse information put twice formerly and once in simple terms to the first named applicant.

30. Mr Prajapati gave evidence that he was not the holder of a Medical Treatment visa, but the holder of a Bridging visa.

31. As Mr Prajapati is the person who the first named and second named applicants seek to support and he does not hold a Subclass 602 Medical Treatment visa, clause 602.212(4) cannot be met.

32. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

33. The first and second named applicants are not claiming to be citizens of Papua New Guinea. The first named applicant gave evidence that she and her daughter are citizens of India. Passports of the first named applicant and second named applicant provided to the Tribunal confirm the same. Nor does the first named applicant and second named applicant reside in the Western Province of Papua New Guinea. The Tribunal also has no evidence before it that 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 of Queensland. Therefore subclause (5) is not satisfied.

34. While the first named applicant and second named applicant are in Australia, information submitted to the Tribunal shows that they have not turned 50 as they are aged six and 33 years of age respectively. The first and second named applicants therefore cannot meet the requirements of subclause (6).

35. While the first named applicant claimed that she and her family were having financial difficulties, this is insufficient to meet subclause (7). The first named applicant and second named applicants are not the holders of a subclass 602 visa; or a subclass 675 (Medical Treatment (Short Stay)) visa; or a subclass 685 (Medical Treatment (Long Stay)) visa.  The Tribunal does not have information before it that the first named applicant or second named applicant or a member of their immediate family, is likely to become a charge of the Commonwealth, a State, or Territory or a public authority in Australia. Consequently, subclause (7) is not met.

36. While the Tribunal appreciates that the first named applicant’s and second named applicant’s opportunities for work, education, and general standard of living in Australia might be greater than those in India, of themselves the Tribunal is not satisfied that such reasons constitute 'compelling personal reasons’ as many applicants would prefer to live in Australia than in countries with less developed economies. Accordingly, the Tribunal is not satisfied that subclause (8) is met.

1. Given the above findings, the requirements in cl 602.212(2-8) are not met.

2. Based on the findings above, the first named applicant and second named applicant do not meet the requirements for the grant of the visa. The decisions under review must be affirmed.

   DECISION

3. The Tribunal affirms the decisions not to grant the applicants Medical Treatment (Visitor) (Class UB) visas.

   Naomi Schmitz
   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).