Shamsher Singh (Migration)

[2022] AATA 5155

Shamsher Singh (Migration) [2022] AATA 5155 (5 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shamsher Singh

CASE NUMBER:  2120100

HOME AFFAIRS REFERENCE(S):          BCC2021/2289877

MEMBER:Linda Holub

DATE:5 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 5 December 2022 at 12:47pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary entrant – Coeliac disease – gastroscopy and endoscopy – adverse migration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 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 9 December 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).

2. The applicant applied for the visa on 29 November 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).

3. The delegate refused to grant the applicant the visa because the delegate found that the applicant’s adverse migration history strongly indicated the applicant intends to seek a visa pathway to remain in Australia on an ongoing or permanent basis and was utilising the Medical Treatment visa pathway as a means of to maintaining ongoing residence. The delegate was not satisfied that the applicant intends to remain in Australia on a temporary basis.

4. On 21 October 2022 the applicant was invited to appear before the Tribunal on 22 November 2022 to give evidence and present arguments. However, in an email of 18 November 2022 the applicant wrote that:

   “I am unable to attend the hearing please give your decision as per information provided”.

5. On the basis of the applicant declining the invitation to appear at a hearing and requesting a decision on the available evidence before the Tribunal, I have proceeded to do so.

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

   BACKGROUND

7. The applicant provided the Tribunal with a copy of the Department’s Decision Record. It outlines a summary of his migration history.

8. The visa applicant is a 28-year-old national of India. He last arrived in Australia 21 June 2015 as the holder of a Visitor (subclass 600) visa that ceased on 21 September 2019. The applicant has not departed Australia and has not held a substantive visa since this time.

9. The applicant has previously overstayed his visa and remained in Australia as an unlawful non-citizen for over four years. The applicant lodged an unsuccessful application for a Protection (subclass 866) visa on 19 March 2020.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 the applicant has a genuine intention to stay remain in Australia for the purpose for which the visa is granted.

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

11. 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.

12. Departmental records indicate the applicant was in Australia at the time of application on 29 November 2021. Accordingly, the Tribunal finds that the applicant satisfies the requirements of cl.602.212(6)(a). The evidence before the Tribunal indicates that he was born in April 1994, and therefore has not turned 50 years of age. Accordingly, the Tribunal finds that as he has not turned 50 years of age, the applicant does not satisfy the requirements of cl.602.212(6)(b)

13. As he does not satisfy the requirements of cl.602.212(6)(b), he is unable to meet the requirements of cl.602.212(6) in its entirety.

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

15. The applicant is not medically unfit to depart Australia and therefore the requirement at Clause 602.215 applies.

16. With his application the applicant provided Form 1507 (Evidence of intended medical treatment) signed by Dr Sumera Yasmin on 6 October 2021 which stated the medical condition requiring treatment was Coeliac disease, and the treatment option was gastroscopy and endoscopy. Within his application for a Medical Treatment visa, the applicant stated he would be under care from 26 November 2021 to 21 January 2022.

17. I am prepared to accept that the applicant required a gastroscopy and an endoscopy.

18. I have regard to the fact that no further evidence was provided to the Department or to the Tribunal that the applicant requires any further treatment.

19. I have has taken into consideration the fact that the applicant has been in Australia since mid-2015 and that he applied for a Protection visa. This is indicative that he wishes to remain in Australia. I also note he was unlawful for a period of over four years.  No submissions were made as to why he remained in Australia after his Protection visa application was refused but would now be prepared to depart should the visa be granted.

20. I have also taken into consideration that the applicant did not provide any evidence that he is undergoing or plans to undergo any medical treatment.

21. For these reasons, I am not satisfied that the applicant genuinely intends to remain in Australia temporarily for the purpose for which the visa is granted.

22. Given the above findings, cl 602.215 is not met.

23. 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

24. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

    Linda Holub
    Member