Rohit Bedi (Migration)

Rohit Bedi (Migration) [2021] AATA 5570 (18 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rohit Bedi
CASE NUMBER:  2007125
HOME AFFAIRS REFERENCE(S):          BCC2020/1076084
MEMBER:Mark Bishop
DATE:18 November 2021
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 18 November 2021 at 12:42pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia – unable to provide the Tribunal with any current or up to date medical reports – applicant is not undergoing any medical treatment at all – 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 9 April 2020 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 9 March 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).
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 18 November 2021 and to give evidence and present arguments.
The applicant provided a copy of the decision record to the Tribunal.
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. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
On 2 August 2018 the President of the Administrative Appeals Tribunal brought down a Practice Direction relating to the conduct of reviews under Migration and Refugee Division. Clause 7 of the Practice Direction dealing with Migration and refugee Matters provides as follows:
Seeking an adjournment
7.3 If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.
7.4 If you seek an adjournment of the hearing on medical grounds, you must contact us as soon as possible and must provide a certificate from a medical practitioner certifying that you are unable to attend and give oral evidence, and indicating when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you are a representative acting on behalf of an applicant, you must submit such medical certificates no later than two business days before the scheduled hearing day (where available).
The medical certificate provided to the Tribunal was not consistent with this requirement set out in cl.7.4 as set out in paragraph 8 above. Nonetheless the Tribunal does not reject the request for an adjournment based on this technical conclusion. The Tribunal intends to fully consider the substance of the applicant’s request, and medical certificate provided by the applicant to the Tribunal prior to the hearing.
The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner, which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
The medical certificate and accompanying email from the applicant dated 12 November 2021 and signed by a Dr. Gan stated, “This is to certify that Mr Rohit Bedi is unfit for work/study from 12 November 2021 to 3 December 2021 inclusive “due to a medical condition”. The medical certificate did not state the applicant was unable to attend a brief phone hearing. The medical certificate did not state the applicant should not or could not participate in a brief phone hearing. The medical opinion did not in any detail outline the nature of the applicant’s medical condition. The medical opinion did not outline detail relating to a course of action. The medical opinion did not provide a prognosis.
The medical opinion did not state the applicant should not attend a phone hearing or would be inconvenienced in any way by attending a phone hearing. The Tribunal was unable to relate the limited detail in the medical certificate to a request for an adjournment of a phone hearing brief in nature. The Tribunal was of the view the applicant provided insufficient information to warrant the request for an adjournment.
The Tribunal refused the application for an adjournment.
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.
Cluse 600.215 is 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 applicant was born on 31 January 1988. 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.602.215 (6).
Accordingly the Tribunal turns to cl.602.215.
The delegate summarised the applicant’s visa/immigration history as follows:
·On 31 July 2006, the applicant first arrived in Australia as the holder of a Student (subclass 573) visa.
·On 14 October 2009, the applicant lodged a Student (subclass 572) visa, which was granted on 20 October 2009.
·On 03 May 2010, the applicant lodged a Temporary Skilled (subclass 485) visa, which was refused on 07 February 2012. The applicant sought a review of the decision at the Migration Review Tribunal (MRT), which was affirmed on 03 October 2012.
·On 31 October 2012, the applicant sought Ministerial Intervention (MI), under section 351, which was determined, not considered on 12 March 2013.
·On 03 April 2013, the applicant lodged a Protection (subclass XA) visa, which was refused on 16 December 2013. The applicant sought avenues of review for the refused application including an appeal to the Full Federal Court, which resulted in Minister Win on 26 November 2019.
· On 18 December 2019, the applicant sought a Ministerial Intervention (MI), under section 417, which was determined, not considered on 20 December 2019.
·On 13 January 2020, the applicant lodged a Medical treatment (subclass 602) visa which was determined as invalid on 14 February 2020.
·The applicant currently holds a Bridging visa E (subclass 050) visa. During the applicant’s time in Australia, the applicant has been the holder of Bridging E visa for over 9 years and 4 months.
·On 09 March 2020, the applicant lodged a Medical treatment visa. It is stated that, the applicant would like to remain in Australia until 02 April 2020, to seek medical treatment for “Pilonidal Abscess”. A Form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.
The delegate made the following findings:
·“On 01 April 2020, correspondence was sent via email to the applicant requesting them to provide comment on their adverse migration history to Australia. On 01 April 2020, the applicant provided the following comment: “Sorry about this, I wasn't aware this debt will affect my visa”.
·The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state they must remain in Australia for ongoing consultation. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.
·In their Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future. Departmental records confirm that the applicant have applied for multiple temporary and permanent visas onshore and have taken every opportunity to present their case or circumstances for review. I find that their adverse migration history strongly indicates that they intend to continue to seek a visa pathway to remain in Australia on a permanent basis.
·I have considered the claims and supporting evidence that the applicant has provided with their application. I find 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.
·I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.
Decision
·As clause 602.215 is not met by the applicant, I find the criteria for the grant of a Medical Treatment visa are not met by the applicant.”
Pilonidal abscess is a rare condition treatable by a medical professional. An abscess is a collection of pus. It rarely requires a laboratory test or imaging. It can last several days or weeks. The procedure for treatment is lancing or cleft closure.
In his Application for a Medical Treatment Visa dated 9 March 2020 the applicant declared he sought medical treatment for “recurrent pilonidal abscess and cost is approximately $500” at a day surgery facility in Sydney. The Form 1507 provided to the Department outlined a medical condition of pilonidal abscess. In evidence to the Tribunal the applicant advise he was not aware of any doctors or medical personnel in India who provided treatment for this condition. India is a large rich country and it is common knowledge India has extremes of wealth and poverty. It is also common knowledge India has a functioning and large medical system and many self-help and community based organisations that provide assistance, including medical advice to those in need. The Tribunal doesn’t expect the applicant to be familiar with the breadth or depth of the medical system in his home country, particularly as he has been absent since at least 2012, but it stretches credulity to suggest an applicant might not be aware that medical advice is available in the home country for a relatively simple condition. The Tribunal gives this statement of the applicant little weight.
The applicant advised the Tribunal he did not challenge the findings of the delegate.
In evidence to the Tribunal the applicant advised as follows:
·He has been continuously resident in Australia since 2006. He does not work and lives with a Sikk family in Sydney. This family provides for him.
·He has not returned to India since 2012. He has two siblings in India. His siblings occasionally send him money His parents have passed.
·He participates in the Sikk community in Sydney and attends temple once or twice per month.
·He has not seen a medical professional for his condition of “pilonidal abscess” since early 2020. He was unable to provide the Tribunal with any current or up to date medical reports. He advised the Tribunal he did not feel well. He does not have access to Medicare and said his family friend paid any medical bills. He did not provide any copies of recent medical bills to the Tribunal. He advise he had provided any documents in his possession.
In assessing whether the applicant satisfies clause 602.215, the Tribunal considered the following:
·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject
·whether the applicant intends to comply with the conditions to which the visa would be subject
·whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia
·the personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay
·the personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption) conditions that might encourage the applicant to remain in Australia
·the presence of immediate family members in their home country
The Tribunal finds the applicant has a settled and steady life living with a Sikk family in Sydney. This family provide for all his necessities and help him out by taking him on occasion to the doctor and paying any medical bills. He participates in his local Sikk community. The Tribunal finds the personal circumstances of the applicant (ongoing support, practical assistance, a home, participation in a family, ongoing involvement in the distinct Sikk community, attendance at the Sikk temple, no visitation to his home country since 2012 and no visits from his two siblings in India to see him in Australia) encourage the applicant to remain in Australia. The Tribunal is not aware of any personal circumstances of the applicant that would encourage him to return to the home country at the end of the proposed stay.
The Tribunal notes the evidence of the applicant that he has not been receiving medical treatment (see paragraph 29 above) for his condition of pilonidal abscess for a lengthy period of time. The Tribunal is unable to find the applicant ever continued any medical treatment consistent with the advice provided to the Department post initial diagnosis and treatment.
The Tribunal finds the applicant is not engaged any form of medical treatment under the guidance or supervision of a recognised medical professional for his condition of pilonidal abscess The Tribunal finds the applicant is not undergoing any medical treatment at all (excluding, of course, his visit/s to the doctor for a “medical condition” as advised to the Tribunal and discussed above at paragraphs 8 to 13).
The Tribunal finds the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.
The Tribunal is of the view the applicant does not genuinely intend to stay temporarily in Australia.
Given the above findings, cl 602.215 is not met.
Concluding paragraphs
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Mark Bishop
Member

[2021] AATA 5570

18 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal