Raghu Rajan (Migration)

Raghu Rajan (Migration) [2022] AATA 4607 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Raghu Rajan
CASE NUMBER:  2111135
HOME AFFAIRS REFERENCE(S):          BCC2021/1415633
MEMBER:Stephen Witts
DATE:17 November 2022
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 17 November 2022 at 10:23am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – lengthy stay in Australia – application for a permanent visa – limited evidence of medical condition – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215
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 17 August 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 14 July 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 applicant failed to satisfy the criteria set out in the relevant Migration Regulations.
The applicant appeared before the Tribunal on 17 November 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the applicant’s partner, Mrs Sharma.
The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
According to the delegate’s decision record dated 17 August 2021 provided to the Tribunal by the applicant, on 14 July 2021 the applicant lodged an application for a medical treatment visa stating that they would like to remain in Australia to seek medical treatment. According to the Department it considered the amount of time already spent in Australia along with the applicant’s migration history and made a decision that the applicant was not a genuine temporary entrant.
According to the delegate the applicant arrived in Australia on 17 March 2007 and since that time they have spent more time in Australia than outside. It was also stated that since their arrival the applicant has had a visa cancelled and has also demonstrated an intention to remain permanently by applying for a RSMS- Migrant (subclass 187) visa. It was further stated by the delegate that the applicant is currently challenging a decision regarding a request to remain permanently in Australia judicially and that the applicant has also made an application for this medical treatment visa.
The Tribunal further notes that the applicant has provided it with a doctor’s letter and referral, a bank statement, emails from friends indicating that they are owe money to those friends, and a letter from the applicant’s wife.
In regard to the medical evidence referred to above, provided was a copy of a patient assessment from a doctor referring to the applicant suffering from stress and anxiety indicating that the applicant is on no regular medications and also that the applicant’s wife had a child via caesarean section. This material was not dated.
Also provided was a letter from a doctor dated 8 November 2022 stating that the applicant is being referred for advice due to stress and anxiety.
In regard to the financial material provided a bank statement was provided from the ANZ bank noting a current deposit of $256.40.
In regard to the letter provided by the applicant’s wife it was stated that her husband is going through anxiety and stress, that he has applied for permanent residency via an employer sponsor who he has worked with for three years but that this has been rejected, that he has suffered from financial and emotional setbacks and is under stress. She also stated that she has studied while here in Australia and has a master’s degree, that she has a baby girl, that they are suffering financial hardships, that they have thought of going back to their own country, but it is even harder there and that they would like a comfortable life in Australia.
At the hearing the Tribunal had a discussion with the parties regarding the application.
The applicant stated that he first came to Australia in 2007 on a student visa and that he studied at diploma level in hospitality management and business management before working for some time in the hospitality sector as a chef. He stated that in 2013 his mother died and that he returned back to his home country for family reasons for 3 ½ years. He stated that he did not believe that his visa was cancelled at that time. He stated that he started work with the company, Praise Enterprises Pty Ltd, in mid-2017 and that he worked for them for three years before the company closed down and therefore denied him ongoing sponsorship. He stated that he no longer has working rights.
He further stated that his wife came here in 2018, that they couldn’t leave after that because of the pandemic restrictions, that he has been very stressed but that he will go back but wants to get better before he goes back to his home country and that he has been suffering from anxiety and stress. He stated that he now has a daughter who is one year old and that his wife has gone back to work.
The Tribunal had a detailed discussion with the applicant regarding his medical treatment. He stated that he has had consultations with a doctor who has referred him to a psychologist but that he has not at this stage had any appointments with this psychologist. When asked about what treatment regime he has been placed on he stated that he has been told to do meditation and breathing exercises, and yoga and that he is not on any formal medication or pills. He stated that he has been told that he could occasionally have an alcoholic drink to relax himself.
In regard to his financial circumstances here in Australia he stated that he has been getting money from friends and that they are renting but that the landlord has treated them well and has accepted that they owe him several months’ rent.
The applicant’s wife, Mrs Sharma, stated that she came to Australia on a visitor visa and that they wanted a better life here in Australia, that she is working now as a consultant with Jenny Craig, that it has been difficult because they had been unfortunate with their visa history but they are trying their best but things are not working out, that men are normally the providers in her culture but that her husband has not been able to fulfil this role in Australia, that people are very judgemental back in her home country about these sorts of matters, and that she has applied for a temporary graduate visa and believes she may be on a bridging visa at this time.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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 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.
Clauses 600.215 and 602.212 are set out immediately below:
602.215
1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions to which the last
substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 602
visa would be subject; and
(c) any other relevant matter.
(2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:
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.
Clause 602.212 (6) (f) provides as follows:
“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
The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).
Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”
The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).
The, Mr Rajan, applicant was born on 19 March 1986. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.
Hence the applicant does not meet the criteria set out in cl.602.212 (6).
Accordingly, the Tribunal turns to cl.602.215.
The Tribunal has considered very carefully the evidence provided above from the applicants. The Tribunal notes that the applicants have provided some evidence that the primary applicant, Mr Rajan, has been suffering from some form of anxiety or depression. As stated, the Tribunal has considered this matter very carefully and is concerned that no credible evidence was provided by the parties to suggest that he needs to remain in Australia for any particular medical reason that could not be filled via ongoing treatment by skilled professionals for anxiety and depression in his home country.
The Tribunal is also concerned that there was no credible evidence before it as to the ongoing medical treatment regime that may or may not be taking place via structured medical interventions by skilled professional specialists here in Australia. The Tribunal notes that evidence was provided that a medical doctor referred the applicant on for treatment for anxiety via a letter from a doctor dated 8 November 2022 referring to the fact that the applicant is being referred for advice in regard to this matter.
The Tribunal is concerned though that there is no real record of a structured medical regime that would suggest that the applicant should remain in Australia for particular forms of ongoing medical evaluations. The Tribunal finds that the applicant could, if he wished, return to his home country for ongoing treatment of this nature where such specialist advice and treatment is available. It is also noted by the Tribunal that there was no credible evidence in regard to specific consultation ongoing, or specific plans for future consultation and nor was there any evidence provided that such treatment is unavailable outside of Australia and in the applicant’s home country.
The Tribunal notes this in combination with the applicant having resided here in Australia for some time, that there is no evidence of any intention to leave at any particular time as outlined in the evidence provided above, and also the fact that the applicant has not provided any evidence that they have an incentive to return to their home country.
The Tribunal has considered this matter carefully and finds that these circumstances lend weight to the contention that the applicant is seeking to use a medical treatment visa to remain in Australia for an indefinite period or permanently, and that they are not genuine in their protestations that they require to remain in Australia specifically for medical treatment.
As noted above the Tribunal has considered the claims and supporting evidence that the applicants has provided with the application.
On that basis the Tribunal finds that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.
Given the above findings, cl 602.215 is not met.
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.
The Tribunal finds that as the primary applicant did not fulfil the criteria for the grant of the visa that therefore the secondary applicant also does not fulfil the criteria for the grant of the visa.
decision
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Stephen Witts
Member

[2022] AATA 4607

17 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction