Sarath (Migration)

[2019] AATA 1249

Sarath (Migration) [2019] AATA 1249 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Aathmika Sarath

CASE NUMBER:  1720893

DIBP REFERENCE(S):  CLF2013/254619

MEMBER:John Billings

DATE:15 January 2019  

PLACE OF DECISION:  Melbourne

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.602.215 of Schedule 2 to the Regulations.

Statement made on 15 January 2019 at 11:20am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor)(Class UB) visa – Subclass 602 (Medical Treatment) – genuinely intends to stay in Australia temporarily – ongoing medical treatment – parent’s immigration history of concern – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

CASES
SZLSM v MIAC [2009] FCA 537

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 Immigration on 17 August 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant (“Aathmika”) is a five year old girl.  Aathmika’s father, Mr Sarath Vijayan Nair, applied for the visa on her behalf on 7 August 2017.  At the same time, he and Aathmika’s mother, Ms Lekshmi Sarath, applied for Medical Treatment visas on the basis that they were seeking to give emotional and other support to Aathmika. 

3. At the time the visa applications were made, 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 (the Regulations).

4. The delegate was not satisfied that Aathmika genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and so refused to grant the visa: see cl.602.215.  The delegate had particular regard to the family’s immigration history and to the insufficiency of evidence in support of the application: see below. 

5. Mr Nair and Ms Sarath were refused visas on the same day that Aathmika was refused a visa, 17 August 2017.  The reason Mr Nair and Ms Sarath were refused visas was because, in particular, Aathmika did not hold a Subclass 602 or other relevant visa: see cl.602.212(4).    

6. Mr Nair applied for review on behalf of Aathmika on 7 September 2017.  Mr Nair and Ms Sarath have made separate applications for review (AAT cases number 1720899 and 1720901).  Among other things, Mr Nair gave the Tribunal a copy of the three primary decisions.    

7. Aathmika, Mr Nair and Ms Sarath appeared before the Tribunal on 3 October 2018.

8. With the consent of Mr Nair and Ms Sarath the Tribunal conducted the reviews concurrently.  Mr Nair gave oral evidence on behalf of Aathmika. 

9. Mr Nair has adopted the role of Aathmika’s guardian by signing the visa application and the application for review, by corresponding with the Tribunal, and by giving oral evidence on her behalf: see SZLSM v MIAC [2009] FCA 537.

10. Aathmika and her parents are nationals of India.  Aathmika was born in Melbourne in 2013.  She attended preschool in 2018 and is due to commence primary school this year. 

11. Mr Nair, aged 36, and Ms Sarath, 34, were married in India in 2005.  Mr Nair has worked in Australia as a customer services officer but he is not currently employed.  Ms Sarath is a classical dancer.  The family is being financially supported by relatives. 

12. Mr Nair’s immigration history includes the following details.  Mr Nair first arrived in Australia on 22 June 2008 holding a Class TU Subclass 572 visa valid until 15 March 2010.  He was granted a further Student visa on 4 March 2010 that was valid until 27 July 2011.  On 27 July 2011 he was granted a further Student visa that was valid until 6 January 2014.  On 6 January 2014 he was granted a Class VC Subclass 485 Temporary Graduate that was valid until 6 July 2015.  On 8 July 2015 he was granted a Bridging C visa, the first of a series of bridging visas.  (The Bridging C visa was granted when he applied for a further Student visa.  The further history regarding that application is set out below).  On 12 September 2016 Mr Nair was granted a Class FA Subclass 600 Visitor visa that was valid until 12 March 2017.  On 14 March 2017 he was granted a Bridging A visa and then a further Visitor visa that was valid until 16 April 2017.  On 30 June 2017 he was granted the first of a series of Bridging E visas.  Ms Sarath’s history is substantially the same as Mr Nair’s.  Mr Nair and Ms Sarath have departed and re-entered Australia many times since they first arrived over 10 years ago.  They have been offshore for up to eight months at a time.  Aathmika has accompanied them on two trips to India – for about a month in late 2013; and for about seven months from November 2014.    

13. The application for a further Student visa mentioned above was made by Mr Nair on 7 July 2015.  Ms Sarath and Aathmika were included as secondary applicants.  The visas were refused on 9 July 2015 on the basis that Mr Nair did not hold a substantive visa when he applied or previously hold a substantive visa of a specified type.  Mr Nair applied to the Tribunal for review.  On 8 December 2015 the Tribunal (differently constituted) affirmed the decision but indicated that it would refer the matter to the Minister to consider an exercise of discretion under s.351 of the Act on the basis that, in circumstances set out in the decision, the case raised clearly unintended consequences of legislation and that the application of relevant legislation in the case led to unfair or unreasonable results: AAT case number 1510302. 

14. The decision record for the primary decision now under review indicates that the request for Ministerial intervention was successful and resulted in the 12 September 2016 grant of Visitor visas.  The decision then records that the applicants became unlawful “again” from 13 March 2017, when the visas granted on 12 September 2016 expired, until 10 April 2017 when Bridging E visas were granted “on departure grounds”.  (The Department’s movement records actually show that, as set out above, on 14 March 2017 Mr Nair was granted a Bridging A visa and the further Visitor visa that was valid until 16 April 2017).  The applicants did not depart Australia and were granted further Bridging E visas.

15. Further to the above, Mr Nair applied for judicial review of the Tribunal’s decision in case number 1510302.  On 11 November 2016 the Federal Circuit Court made an order by consent dismissing the application. 

16. Aathmika’s application for the Medical Treatment visa was made on the basis that she has the condition vitiligo which requires phototherapy and depigmenting.  (Vitiligo is a skin condition where patches of skin become pale).  In a Form 1507 (Evidence of intended medical treatment) dated 1 August 2017 that accompanied the visa application, dermatologist Dr Shobha Joseph declared that Aathmika has vitiligo and that she was being given topical treatment with regular follow up. 

17. The delegate noted in the primary decision that at the time of decision no new or further medical evidence had been submitted. 

18. The Tribunal issued the hearing invitation on 11 September 2018.  The Tribunal requested that any further documents or information be submitted by 26 September 2018.  No medical or other evidence was submitted prior to the hearing.  During the hearing Mr Nair said that he thought that the form submitted with the visa application should be sufficient but he also said that Dr Joseph could provide a letter for the Tribunal if requested. 

19. Mr Nair told the Tribunal that he has a sister who is an Australian citizen.  He said that she has relocated to Qatar so that he currently has no relatives here.  (The Department’s movement records confirm that Mr Nair’s sister, Ms Salini Vipinkumar, departed Australia on 12 April 2018).  Mr Nair’s said that his parents and parents-in-law are in India. 

20. Aathmika’s vitiligo was visible to the Tribunal.  Mr Nair told the Tribunal that her condition has improved under Dr Joseph’s care.  Aathmika is currently having cream applied to her skin and it is planned that she will have phototherapy commencing in mid-2019.  For how long that continues will depend on how she reacts to the treatment.  Mr Nair said that he hopes it will take three sessions but the doctor will decide that.  Aathmika first went to India in 2013.  She did not have the condition at that time.  The next trip to India was from November 2014 to July 2015.  The family consulted doctors there.  One doctor said to them that Aathmika did not have vitiligo.  Another doctor said that Aathmika did have vitiligo.  The second doctor prescribed a cream but the cream aggravated the condition.  Mr Nair said that it is his “personal opinion” that treatment in India would not be successful.  He added that he and Ms Sarath are worried that Aathmika will suffer discrimination in India as a result of her appearance. 

21. Aathmika is otherwise in good health.  Mr Nair and Ms Sarath are also in good health. 

22. Mr Nair agreed with the immigration history set out above.  He spoke about the circumstances that led to the request for Ministerial intervention.  He said that Aathmika’s treatment had begun by the time he requested the Minister to intervene.  In the meantime Ms Sarath began voluntarily participating in “multicultural performances” in Australia as a classical dancer.  When at one stage Mr Nair applied for a Visitor visa he named Ms Sarath and Aathmika as secondary applicants instead of them making their own applications.  Mr Nair said that he was granted a visa but the visas Ms Sarath and Aathmika already held expired.  He said he was advised by the Department to wait for his visa to expire so that they could all be granted Bridging E visas.  There was an application made for “an entertainer visa” for Ms Sarath, but six months after the application was lodged it was found to be invalid.  Mr Nair said that at that stage - because Aathmika’s treatment was ongoing - a migration agent told them that they should apply for Medical Treatment visas. 

23. Mr Nair further told the Tribunal that in the beginning his aim was to obtain postgraduate qualifications in Australia before pursuing his career in India.  He said that he sometimes deferred his course for financial reasons or because of his parents’ state of health.  He said that the family did not ever apply for permanent visas and did not ever intend to stay in Australia permanently.  He said that the reason they are still in Australia is because they have confidence in Dr Joseph and that once Aathmika’s phototherapy is completed he wants the family to return to India.

24. After the hearing the Tribunal invited Mr Nair to provide a letter from Dr Joseph to address the following questions and any further relevant matters:

    1.What is the date or approximate date on which Dr Joseph first saw Aathmika and what has been the frequency of consultations since that time?

    2.        What are Aathmika’s diagnosis and prognosis?

    3.What is the nature of treatment administered or prescribed to date, and what observations does Dr Joseph have about its success?

    4.Is any other treatment proposed?  What is the specific nature of that treatment?  What is the anticipated commencement date?  What is the anticipated duration of the treatment? 

    5.        If the proposed treatment cannot commence immediately, why is that?

    6.(If Dr Joseph is in a position to say), is the proposed treatment available outside Australia, in particular in India?

25. The Tribunal has received a letter by Dr Joseph dated 16 November 2018.  Dr Joseph confirmed that she first saw Aathmika on 2 February 2016.  She confirmed the diagnosis of vitiligo and described the condition.  Dr Joseph said that the condition “causes significant psychological morbidity and may have a profound effect on the quality of life. [It] can be cosmetically very disabling, particularly in people with darker skin types”.  The “unpredictable natural history” of the condition makes it “difficult to ascertain the prognosis or time frame of response to treatment”.  As Aathmika is aged only five, the current management plan is to prescribe topical treatment of a kind specified in the letter.  If the disease becomes progressive Aathmika may require systemic drugs, most likely oral steroids, if she has no side effects or contraindications.  Dr Joseph noted that she last saw Aathmika on 24 July 2018 at which time the disease was stable with significant improvement in repigmentation with no new patches of vitiligo.  On the subject of the availability of treatment outside Australia, Dr Joseph said that the treatment is available worldwide but there is no general consensus about the type of treatment or response, as it varies with individuals and within the patches in the same patient.  Dr Joseph said that treatment is long-term with the aim being to try to repigment the affected areas, treat progressive disease early while minimising side-effects, and monitor regularly.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

28. The main issue in this case is whether Aathmika genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

29. 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 and meets the requirements of cl.602.212(6).

30. Aathmika does not meet the requirements of cl.602.212(6).  Among other things, she has not turned 50.  And there is no claim, and no evidence to support a claim, that she is currently medically unfit to depart Australia. 

31. The credibility of an applicant is a key consideration in assessing the genuineness or otherwise of his or her intention.  The Tribunal considers Mr Nair to be a credible witness.  He gave evidence in a straightforward, non-evasive manner.  The Department’s records and other documents provide some support for his evidence. 

32. The immigration history is of concern, at least on the face of it, for it suggests a desire on the part of Aathmika’s parents to try to extend their stay in Australia by various means more or less indefinitely.  Closer examination of the history indicates that the matter is not clear cut: among other things, the family has spent substantial periods of time in India since 2008.  It is so that Mr Nair and Ms Sarath and Aathmika have spent time in Australia after visas have ceased.  That has been for the short periods noted and in the circumstances noted.  There is no indication that there has been any other breach of visa conditions. 

33. The position in relation to conditions to be imposed on any visa granted to Aathmika is not clear given especially that she is a minor, but the Tribunal is satisfied from its discussion with Mr Nair that the family would abide by relevant visa conditions.    

34. It is of some concern that still, more than 12 months after the application for the Medical Treatment visa was made, Mr Nair seeks the visa for Aathmika without being able to state clearly the period for which the visa is sought.  For reasons essentially given by Dr Joseph the medical evidence now available does not definitely state for how long treatment will continue.  Nevertheless, the Tribunal is satisfied on the basis of Dr Joseph’s letter that treatment is continuing for the time being and that, subject to Aathmika’s response to treatment, may be elevated in the foreseeable future.  Dr Joseph did say that treatment is “long-term” but as the treatment she has been giving commenced nearly three years ago, that is not to say that treatment will necessarily extend very far into the future.   

35. It does not appear that treatment of the nature recommended by Dr Joseph would be unavailable in India, but the Tribunal accepts Mr Nair’s evidence about the difficulties the family confronted when seeking a proper diagnosis and treatment in that country.  The Tribunal is also mindful of Dr Joseph’s statement that vitiligo causes significant psychological morbidity and may have a profound effect on the quality of life.  Aathmika may not be spared social difficulties in Australia, but the Tribunal accepts that Mr Nair and Ms Sarath have genuine concerns about the potential psychological impact on Aathmika if she has to return to India before her treatment is completed.

36. The Tribunal accepts the oral evidence that Aathmika and her parents are currently supported financially by relatives.  Of course, Aathmika’s parents are in Australia.  Currently, the presence of Aathmika’s parents in Australia is essentially dependent on Aathmika’s visa status.  There is no evidence that Aathmika has further personal ties to Australia that would be greater than the personal ties she has to India.  In particular, Mr Nair’s sister departed Australia in the first half of 2018 and has not returned.  Aathmika’s grandparents are in India, so she has significant personal ties to India also. 

37. The ultimate outcome of the treatment for Aathmika cannot be known at this point.  The duration of treatment will likely depend on its effectiveness.  That does not mean that there can be no limit on the duration of any visa granted to Aathmika.  Having regard to all the above matters, however, the Tribunal is satisfied that Aathmika and her parents have a genuine intention to leave Australia when the treatment provided by Dr Joseph concludes – whether that means a cure or so much of a cure as Dr Joseph is reasonably able to achieve. 

38. On the above basis the Tribunal is satisfied that Aathmika genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 

39. Given these findings, cl.602.215 is met.  The appropriate course is therefore to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

    DECISION

40. 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.602.215 of Schedule 2 to the Regulations.

    John Billings
    Senior Member