Rani (Migration)

[2021] AATA 3552

Rani (Migration) [2021] AATA 3552 (14 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pooja Rani

CASE NUMBER:  1912531

HOME AFFAIRS REFERENCE(S):          BCC2019/1659236

MEMBER:Meena Sripathy

DATE:14 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.212(4)(a) of Schedule 2 to the Regulations; and

·cl.602.215 of Schedule 2 to the Regulations.

Statement made on 14 September 2021 at 11:16am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – supporting young son receiving medical treatment – son’s separate visa application – physical health and developmental delay – treatment and schooling – COVID-19 travel restrictions – some evidence of treatment available in home country – genuine temporary entrant – visa, residence and work history – previous non-departure – evidence of new travel booking – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602, 212(4)(a), 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 May 2019 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 3 April 2019. 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 applicant applied for the visa on the basis that they would like to support a person who is seeking medical treatment in Australia.

3. The delegate refused to grant the applicant the visa because cl.602.212(4) is not met as the delegate found the person the applicant seeks to support does not hold a Medical Treatment visa and the delegate was not satisfied the applicant met any of the alternatives in cl.602.212.  

4. The applicant appeared before the Tribunal on 20 August 2021 by video via the MS Teams platform to give evidence and present arguments.  The hearing was conducted as a combined hearing with the applicant’s husband and son who were the subjects of their own separate review applications in relation to decisions to refuse their applications for a Medical Treatment (Visitor) (Class UB), which were before the same Tribunal (AAT case reference 1912500 and 1912507).  The Tribunal took oral evidence from Mr Singh and Ms Rani. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages on standby, however the applicants communicated directly in English with the Tribunal for the majority of the proceedings.

5. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   EVIDENCE

6. The applicant is a 37 year old married woman of Indian nationality.  She applied for the visa for the stated purpose of supporting a person who either holds or is applying for a medical treatment visa.  She indicated she is self funded and will support herself with savings. She indicated she has had a Subclass 186 visa refused.  No visa period is indicated in the application. 

7. In support of the application the applicant provided a Form 1507 referring to medical treatment being sought for Devjot Singh, who is an infant (her son) and evidence of her husband’s bank balance as at 31 March 2019, indicating available credit of $8505.35.  

8. File notes on the Departmental file indicate further information was requested for the applicant’s child, whose application will be assessed first. 

9. No further information was requested from the applicant and the application was refused on 3 May 2019.

   Evidence before the Tribunal

10. On 13 August 2021 the Tribunal received the following documents in support of the application:

    a.Letter dated 9 August 2021 from Kathy Brown, Speech Pathologist – confirming Devjot Singh has been receiving speech therapy intervention since May 2019 and ongoing, on a fortnightly basis.  He will be receiving this until he is 7 years old. The fees for the services are $120/session and have been paid using health insurance in 2019. Since 2020, Ms Brown has elected to offer the services free of cost due to the Covid restrictions.

    b.Form 1507 dated 10 August 2017 and Medical Treatment Plan letter from Dr John Singsit, stating Devjot Singh has low iron/Vitamin D and speech issues and is currently under his paediatric care, as he has been ‘affected by lack of social interaction du to Covid lockdown’.  He will be managed with ‘periodic appointments.’

    c.Receipts for medical treatment received in May and June 2021 showing full payments made and no outstanding amounts.

11. At the hearing, on 20 August 2021, the following information was provided by the applicant (applicant wife) and her husband (applicant husband).

12. They live as a family unit at private rental premises in a suburb of Melbourne, Victoria.  The applicant husband is working as an Uber driver, approximately 3 days a week at present.  Apart from his income from employment, they have also received regular financial support from his father in India, who sends money every 3 months or so.  His father has been sending them financial support for the past two years or so. 

13. The applicant wife’s brother resides in Australia, with his wife. This brother has been here for more than 12 years and is a permanent resident.  Apart from him, they have no other close relatives in Australia.  They each have parents and one sibling in Punjab, India. 

14. The applicants gave the following migration history.  The applicant husband came here in 2007 on a student visa.  He completed courses in commercial cookery and hospitality until around 2011.  After this he applied for a Subclass 485 visa but it was refused.  He then applied for a Subclass 457 temporary work visa and worked as a cook for some 4 years. He applied for another 457 visa but this was refused when the nomination was refused.  He applied for a Subclass 186 visa after that but withdrew that application because the employer was not successful. They then made an application for a Subclass 489 visa but withdrew that also due to problems with their agent.  Following this they applied for the present Subclass 602 visa.  The applicant wife came to Australia independently in 2009, also for studies.  She completed various courses including hospitality, cookery and an advanced diploma.  They met while studying and in 2014 they married. The applicant wife was included as a dependent family member on the applicant’ husband’s applications from that time.  Their son was born in March 2016.  While they were applying for the various visas, they started seeing various professionals regarding their son’s health and conditions.  When the applications were not successful, it was suggested to them to apply for this visa so their son could obtain medical treatment here.

15. They applied for the medical treatment visa for the purpose of accessing treatment for their son.  At the time of application they were in the process of getting him diagnosed and assessed for appropriate therapies and treatment at the Royal Children’s Hospital.  Since then, he has been getting regular speech and occupational therapy and attended pre school.  This year he started school and has gained admission to a special school. When he first started he was quite behind and developmentally delayed and since then, with this therapies, he is progressing very well.  They want for him to be able to continue this at least until the end of this school year.  They have seen a paediatrician regularly, initially Dr Sue Kermond, but more recently Dr John Singsit.  The appointments have been disrupted due to the COVID restrictions and lockdown in 2020 and recently in 2021.

16. The Tribunal noted that the recent evidence provided did not indicate any upcoming appointments. In response they said he has another appointment coming up at RCH but it has been difficult to maintain the appointments due to the COVID situation and communication with the hospital is limited. The Tribunal invited them to provide evidence of any upcoming appointments.

17. The Tribunal noted that at the time the application was lodged they submitted a travel booking for a flight to India in September and asked why they did not depart Australia then.  They said they were following the doctor’s advice at that time which was that the treatment here was better for their son than in India. They come from a rural area and there are no similar services.  They stayed for their son’s sake.

18. The Tribunal asked them what their plan is now, given it is more than 2 years since the application was made. They said their son is clearly improving and they would like for him to improve a bit more and then they will go back and find therapies for him there. The Tribunal asked if they had made any enquiries about schools or services in India.  They said they spoke with a friend who was looking into it, but then the COVID situation happened and things are very difficult there.

19. The Tribunal discussed with the applicants its concerns, given their migration and visa application history and recent conduct (not returning as stated in 2019), that they may not have a genuine intention to stay temporarily for the purpose for which the visa is granted. The applicant wife responded that they just want some time so they can make a plan for what to do next.  She is intending to study and if granted a visa she can apply for a student visa.  Because of their  visa status and the COVID situation they have been unable to make any plans. They just want to get to December and their son’s first year of school will be completed and they can look at what else they can do.  They have always followed the rules and have never breached any visa conditions in the decade they have lived in Australia.

20. The Tribunal put to them, its concern, given the evidence before it, is that they appear to have no intention to return to India and therefore the Tribunal may not be satisfied that there is a genuine intention to remain in Australia temporarily if granted this visa.  It will allow them a week to submit any further evidence or information arising from the hearing.

21. On 25 August 2021, the Tribunal received the following documents in support of the application:

    a.Letter dated 25 August 2021 from Mercy Health indicating an appointment for Master Devjot Singh on 4 November 2021 at the M Paediatric Outpatients Clinic

    b.Letter dated 23 August 2021 from Dr Singsit of DoveTouch Specialists, stating that Master Singh is under their care and has ongoing monthly appointments with the paediatrician and behavioural therapist.

    c.Letter dated 23 August 2021 from Sailesh Verma of Listening Ears, Amritsar, regarding recent discussion about care for their child, Master Singh and advising they can provide intensive services in behaviour, speech, special therapy and occupational therapy for the child from 27 December 2021 onwards.

    d.Travel booking Itinerary for the applicants for a flight from Melbourne to Delhi departing 22 December 2021.

22. An officer of the Tribunal sent an email on 26 August 2021 to the contact email address for Listening Ears Amritsar[1] ([email protected]) to seek verification of their letter dated 23 August 2021. 

    [1] >

    On 3 September 2021 the Tribunal received a response by email from Shailesh Verma, the aut5hor of the original letter, from his email address [email protected], stating ‘as per enquired by parents, we have not received any email regarding enquiry till now. we are confirming devjot for enrollment in our centre listening ears amritsar.’  Attaching a copy of the letter dated 23 August 2021.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. 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 meets cl.602.212. If this clause is met, the Tribunal will also consider cl.602.215, which requires that the Tribunal be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

    Does the applicant meet the requirements as a support person?

24. Clause 602.212(4) relates to the applicant seeking to give emotional and other support to an applicant in relation to whom the requirements in subclause (2) or (3) are met.  Subparagraph (2) relevantly, relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Subclause (4) also requires the person to whom the applicant is to provide support to hold a Subclass 602 visa and the applicant must satisfy PIC 4005.

25. On the basis of the evidence before it, the Tribunal accepts that the applicant seeks to give emotional and other support to an applicant in respect of which it has found (in related case 1912507, constituted by the same Tribunal) the requirements of subclause (2) are met and therefore the applicant meets cl.602.212(4)(a).  It accepts that the applicant is the mother of the applicant in case 1912507.  However, as the child is not yet the holder of a subclass 602 visa and there is no evidence before the Tribunal that the applicant has recently undertaken a health assessment to enable a finding in relation to PIC 4005, the Tribunal is unable to make a positive finding in relation to the remaining requirements for this subclause.

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

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

27. 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.

28. As the applicant is well under the age of 50, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

29. In the present case, the visa applicant seeks the visa for the purposes of supporting her son, who seeks medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

30. The Tribunal notes the delegate refused the application of the applicant’s son on the basis of a finding that he did not meet cl.602.215 because the delegate was of the view that the child applicant was seeking the visa as a basis of maintaining ongoing residence in Australia and did not genuinely intend to remain in Australia on a temporary basis.  The delegate referred to the history of multiple unsuccessful temporary visa applications previously lodged by the family, and the lack of documentation to demonstrate an incentive to depart.  The Tribunal discussed this at some length with the applicant wife and applicant husband at the hearing.   It has considered their response that they have always followed the rules and never breached visa conditions and they just want a bit more time so they can make plans for the future. The applicant wife told the Tribunal she is intending to study and if granted a visa she can apply for a student visa, and that they want for their son to complete his first year of school and then they can look at what else they can do.  Following the hearing, they provided a travel itinerary for a return flight to India on 22 December 2021 and a letter from an organisation in Amritsar, that provides special education services and programs indicating they have made enquiries about accessing services for their son from December 2021. 

31. The Tribunal sought to obtain independent verification of this document, but received no reply to its email. It does not consider the response from the writer of the letter received on 3 September 2021 as independent verification because it was provided by the original author from the same email address and was not a response to the Tribunal’s specific correspondence.  However, on the basis of information publicly available from the internet, it accepts that the organisation Listening Ears exists and that it provides intervention services, therapies and special education programs for children in various locations in India, including Amritsar[2]  and for the purposes of the present application, it is prepared to accept that the applicant’s parents may have reached out this organisation to make enquiries about this following the hearing. 

    [2] >

    Regarding the travel booking for flights in December 2021, the Tribunal  has some concerns about what weight it can give this evidence to support their intention to depart Australia given that they failed to depart on the flights previously booked for September 2019.  Particularly given the ongoing circumstances of the COVID pandemic in Australia and India, and their long residence in Australia to date, the Tribunal has some concerns about relying on this travel booking as a guarantee that the applicant will actually depart Australia on this date. However, it accepts that by providing this evidence they undertake to do so.

32. The Tribunal accepts the applicant and her husband are motivated to remain in Australia to access health services for their son that may not be available or accessible to the same standard in their home country.  It appreciates that they want the best chances for their child and that successful early intervention will greatly benefit the child for his future.  As indicated above, the purpose for which the visa is sought is one which the Medical Treatment visa may be granted.

33. Having regard to the matters it must take into consideration for the purposes of cl.602.215, the Tribunal accepts there is no evidence before it that the applicant has not complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa.  It accepts that, having been compliant with visa conditions in the past, the applicant has capacity to comply with the conditions to which the Subclass 602 visa would be subject (being no work and limitations on study) given the history of financial support they have received from their family in the past. The Tribunal additionally observes that condition 8503 may be applied, which would serve to limit the possibility of lodgement of a further application for a visa onshore if that is the main concern. 

34. With regard to any other relevant matter, the Tribunal takes into consideration that the applicant and her husband have been living in Australia now on successive temporary and bridging visas for over a decade. They do not presently have any application for a temporary or permanent visa pending.  Since the application was made in April 2019 for their son to obtain an assessment and diagnosis of his condition, a period of more than two years has passed.  He has been assessed, diagnosed and has had the benefit of a program of therapies and commenced his first year of school, although that has recently been subjected to substantial disruptions due to COVID stay-at-home restrictions.  He has benefited from the therapies received to date and is presently progressing well.  The Tribunal accepts that the child has ongoing needs for special education services and interventions, but these services can also be accessed in his home country as indicated in the evidence presented to the Tribunal. 

1. The Tribunal also accepts that the unforeseeable circumstances of the COVID 19 pandemic  in both Australia and India make return to India particularly difficult at this time, and particularly for the applicant’s child, given his age and vulnerabilities. The applicant her husband seek additional time for their son to finish his first year of schooling and the program of therapies he is currently undergoing and so that they can plan and prepare for services for him in their home country.  They explained that this process has been disrupted by the circumstances of COVID 19 pandemic, particularly as it has affected their region in India.  In the current circumstances of the global pandemic, the Tribunal accepts this as a reasonable explanation for the extension of time sought, and considers it would be a unjustifiably harsh to deny them a period of additional time as requested to at least December 2021 for their son to access medical treatment and make appropriate preparations for ongoing treatment and services in India upon his return, noting that it is a matter for the Department on remittal to set the visa expiry period.  Placing weight on their generally favourable visa compliance history to date, and the evidence of the travel booking and contact made with an early intervention services provider for children with special needs in India, the Tribunal accepts the visa applicant’s intention to only remain temporarily in Australia to provide support to their minor son seeking medical treatment is genuine.  

2. Given the above findings, cl 602.215 is met.

3. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

   DECISION

4. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

   ·cl 602.212(4)(a) of Schedule 2 to the Regulations; and

   ·cl.602.215 of Schedule 2 to the Regulations.

   Meena Sripathy
   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).