Singh (Migration)

[2022] AATA 2248

Singh (Migration) [2022] AATA 2248 (6 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjinder Singh

REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry (MARN: 1174774)

CASE NUMBER:  2013214

HOME AFFAIRS REFERENCE(S):          BCC2020/1958958

MEMBER:Naomi Schmitz

DATE:6 May 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 06 May 2022 at 9:01am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – incomplete medical information provided after prescribed period and no response to invitation to comment – initial visa cancelled for non-compliance – further visa application refused and tribunal review, court appeals and request for ministerial intervention unsuccessful – long period as unlawful non-citizen – no evidence provided that treatment not available in home country – incentives to return or remain – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(1), (3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215(1)

CASE
Hasran v MIAC [2010] FCAFC 40

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 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 24 July 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).

3. On 6 August  2020 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.

4. On 25 August 2020 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicant was represented in relation to the review.

5. On 21 March 2022 the Tribunal wrote to the applicant for two reasons.

6. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:00am on 8 April 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. The second reason was to request under s.359(2) of the Act that the applicant provide the Tribunal with information to address the following:

   ·     Immigration records demonstrate that you first arrived in Australia on a Student visa (subclass 572) on 25 June 2009. Immigration records disclose that you have remained in Australia since that time. Why have you not departed Australia?

   ·     In your medical treatment visa application made on 24 July 2020, you claimed that you would like to remain in Australia from 25 July 2020 until 25 July 2021 to seek medical treatment for depression and anxiety. Immigration records demonstrate that you have remained in Australia since that time. Why have you remained in Australia since 25 July 2021?

   ·     The Tribunal does not have current medical evidence concerning your medical treatment. Please provide a current medical report detailing your medical condition(s) including:

   o    When you were first diagnosed with those condition(s);

   o    What your current medical treatment for those condition(s) involves and evidence of current treatment;

   o    The prognosis of your medical condition(s); and

   o    When does the medical treatment you have undertaken end or when is it due to end?

   ·     Noting you have been in Australia since 25 June 2009 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

8. The request for information was accompanied by various administrative matters, and advised the applicant that if the information was not provided in writing by 4 April 2022, the Tribunal hearing scheduled on 8 April 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act. The applicant did not provide information as requested in the letter issued pursuant to s.359(2) of the Act.

9. As the applicant did not provide information pursuant to s.359(2) of the Act, the applicant no longer had a right to appear before the Tribunal pursuant to s.360(3). The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear.[1]

   [1] Hasran v MIAC [2010] FCAFC 40

10. On 5 April 2022 the hearing listed on 8 April 2022 was cancelled and the applicant was notified of the cancellation of the hearing by email.

11. On 6 April 2022 at 10:44am the representative wrote to the Tribunal and requested another hearing. The email stated:

    We refer to your email dated 5 April 2022, informing us the cancellation of Mr Harjinder Singh’s hearing.

    We request you to provide another opportunity for Mr Singh to attend a hearing, considering the fact that we were waiting on his consultant psychologist Mr Bill Singh to provide us a report. We have sent another message to Mr Bill Singh requesting him to urgently attend to the report.

    We will forward the report forthwith once received in our office.

12. Subsequently on 6 April 2022 at 10:46am the representative sent another email requesting a hearing and enclosed a Psychological Progress Report dated 1 April 2022 and a completed Form 1507. The email stated:

    This is further to our email today.

    We are forwarding the Psychological Progress Report and completed Form 1507.

    Please note that these documents were sent to us on 1 April by Mr Bill Singh but due to a clerical oversight were not noticed by us. We apologise for the inconvenience this may have caused to you.

    We again request that Mr Harjinder Singh is provided with a hearing, as his circumstances are genuine, and that that he will affected unduly if he is unable to present his case via a hearing.

    Thank you for your kind consideration.

13. The Form 1507 was the same form submitted at the time of visa application.

14. On 6 April 2022 in response the Tribunal advised as the applicant had not provided information under s.359(2) within the prescribed period, that s.359C of the Act applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear. The Tribunal further noted that no extension was sought by the representative prior to or on 4 April 2022 and no extension was granted prior to that time. The Tribunal confirmed receipt of the representative’s correspondence dated 6 April 2022 and the progress psychological report which the Tribunal has considered in relation to the application for review.

15. The Tribunal notes that the psychological progress report is dated 1 April 2022 and was not provided until 6 April 2022, two days after the s.359(2) prescribed period. It was therefore clearly available to the representative to provide to the Tribunal on or prior to 4 April 2022.

16. The Tribunal is also satisfied that the Tribunal had taken reasonable steps to ensure the applicant was aware of the hearing. On 1 April 2022 the Tribunal sent an SMS hearing reminder to the applicant’s mobile phone. The Tribunal did not receive an undelivered notification. Subsequently on 1 April 2022, the Tribunal conducted a successful Microsoft Teams test dial with the representative’s colleague.

17. The Tribunal has not received any further materials since 6 April 2022. The Tribunal notes the applicant had a ‘follow-up’ psychological session scheduled on 28 April 2022, with recommended treatment until April 2023.[2] The Tribunal does not regard it as reasonable to postpone its decision to allow additional time for the applicant to provide further medical evidence, as there has been no indication from the representative that there was pending medical material. Moreover, the progress report by Mr Singh does not refer to the preparation of any further medical reports. The Tribunal also notes that the applicant’s treatment is ongoing until 2023. Given the large lapse of time, the Tribunal does not regard it as reasonable to defer its decision for one year. The Tribunal is also of the view that the applicant has had ample opportunity to collate medical evidence given the applicant filed his application for review over one year and nine months ago and has seen the same psychologist. In addition, the applicant appears to have disengaged with the Tribunal by not responding to the s.359A notice sent on 20 April 2022 outlined in paragraph [20] below. The Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.

    [2] Psychological Progress Report by Bill Singh Consultant Psychologist dated 1 April 2022

18. On 20 April 2022 the Tribunal sent a s.359A notice requesting the applicant to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review. This information was that:

    The particulars of the information are:

    1. Departmental records show that you were granted a Student visa (Subclass 572) on 25 May 2009 which was subject to the following conditions:

    (a)      8105 Work Limitation

    (b)      8202 Continues Studying

    (c)      8501 Health Insurance

    (d)      8516 Maintain Eligibility

    (e)      8517 Dependants Education

    (f)       8532 Welfare for Minors

    (g)      8533 Notify Address

    2. Departmental records show that you failed to comply with the conditions of your Student visa (subclass 572) including ‘failing to enrol in course’ and ‘non-payment of fees’. This resulted in the cancellation of your Student visa on 18 November 2011.

19. The invitation advised that this information is relevant to the review because Clause 602.215(1)(a) requires the Tribunal to have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. The Tribunal advised if we rely on this information in making our decision, we may affirm the decision under review.

20. The applicant did not comment on or respond to the information pursuant to s.359A of the Act.

21. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. The Tribunal has checked and confirmed that the invitation was sent to the applicant’s last address provided to the Tribunal in connection with the review. The Tribunal has proceeded to decide the review application on the evidence available to the Tribunal. ^[3]

    [3] Section 362B [Part 5] Migration Act 1958 (Cth)

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

    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.

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

24. 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.

25. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born on [Date] and is thus currently 46 years of age. The applicant has applied for one permanent visa while in Australia, namely a [Specified] visa which was refused. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    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.

26. The delegate’s decision record detailed the applicant’s migration history.

27. The applicant first arrived in Australia on 25 June 2009 on a Student (subclass 572) visa and has not departed since.

28. The applicant’s Student (subclass 572) was cancelled on 18 November 2011. As outlined in the s.359A notice this was as a result of non-compliance with his Student visa conditions, namely failing to enrol into a course and non-payment of course fees.

29. Whilst onshore the applicant applied for a [Specified] visa that was refused on 22 March 2010.

30. The applicant subsequently applied to the Tribunal to review the [Specified] visa refusal decision. On 14 July 2010 the Tribunal affirmed the delegate’s decision to refuse the visa.

31. On 13 August 2010 the applicant sought judicial review, with a Minister win being recorded on 11 November 2010.

32. The applicant remained in Australia and subsequently appealed to the Full Federal Court in respect of the decision to refuse his [Specified] visa. On 25 February 2011 the case was finalised as a Minister win.

33. On 24 March 2011 the applicant appealed to the High Court, with a Minister win being recorded on 7 June 2011.

34. On 16 November 2011 the applicant sought Ministerial Intervention regarding his immigration status, however it was not referred.

35. The applicant has not held a valid visa since 5 July 2011. The applicant was an unlawful non-citizen for over nine years from 6 July 2011 until 26 July 2020.

36. The delegate’s decision record details that the department sent the applicant a natural justice letter regrading his migration history. The applicant in reply stated that he never knew he had become unlawful, claiming his migration agent never informed him and had he known, he would have lodged another application to remain lawful in Australia.

    VISA APPLICATION and EVIDENCE PROVIDED TO TRIBUNAL

37. The applicant identified that he was in Australia. He is a citizen of India. He was born in Malout, Punjab India. At the time of application the applicant wrote the purpose of his stay in Australia was medical treatment. His stay would be self-funded ‘supported by other person – applicant will borrow some money from parents and friends’. He indicated he would be under medical care for one year from 25 July 2020 until 25 July 2021 to seek treatment for ‘depression and anxiety around $20,000’.

38. Attached to the visa application was a 1507 Form signed by Ragbir Singh on 16 July 2020. It detailed the medical condition requiring treatment as ‘depression and anxiety’. The treatment information was ‘psychological treatment and management of depression and anxiety – counselling’. The details of the medical practice where treatment is to be provided were ‘Life Psychologists’ with ‘Bill Singh’ as the treating medical practitioner.

39. At the time of application the applicant declared that he had never been married. He declared that he would be supported by a friend ‘[Mr A]’ of ‘[Address] Marayong New South Wales 2763’, who would bear all his medical costs. The Tribunal notes this was the same residential address as that of the visa applicant at the time of application. In the applicant’s visa application he admitted to being an unlawful non-citizen since his [Specified] visa refusal in 2013.

40. On 27 July 2020 the applicant was issued with a Bridging visa C which remains in force and which has an 8101 ‘no work’ condition.

41. The applicant provided a progress report dated 1 April 2022 by Consultant Psychologist, Bill Singh. The report states that the applicant has been a client at Life Psychologists since 16 July 2020 where he has received monthly psychological counselling and cognitive behavioural therapy. The report states that the applicant presented as highly depressed, anxious and stressed at his initial appointment where he disclosed his ‘whole life gone’ and expressed suicidal ideation without definite plans to end his life placing him at ‘low suicide risk’.

42. From Mr Singh’s observations the applicant has been suffering from a Major Depressive Disorder, Generalised Anxiety Disorder and stress. In terms of prognosis, Mr Singh recommends the applicant continue psychological counselling for the next 12 months until April 2023. The cost is $100.00 per session with an estimated annual cost of $1,200.00. Reports have an additional cost. The applicant has a follow-up counselling session on 28 April 2022. Mr Singh also recommends the applicant follow the instructions of his treating general practitioner and other health professionals and that pharmaceutical intervention may be recommended. The applicant is to maintain a well-balance lifestyle of proper sleep, nourishing diet and sufficient exercise as a coping mechanism for his personal challenges.[4]

    [4] Ibid Psychological Progress Report dated 1 April 2022

    FINDINGS and REASONS

43. In the present case, the visa applicant seeks the visa for the purposes of medical treatment, namely psychological treatment for depression and anxiety. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

44. The Tribunal has considered the Departmental file and the Tribunal file, in addition to the report by Mr Singh dated 1 April 2022 and accepts that the applicant has and continues to suffer from depression, anxiety and stress. However, after considering all relevant matters and the evidence the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and the decision under review must be affirmed.

45. As outlined above, departmental records show that the applicant did not comply with his previous Student visa which was cancelled by the Department. Accordingly, the Tribunal is not satisfied that the applicant has complied substantially with the conditions to which his last substantive visa was subject. The Tribunal places adverse weight on the applicant’s past conduct in this regard.

46. The Tribunal also has serious concerns that the applicant will not comply with the conditions to which the Medical Treatment visa would be subject, in particular the ‘no work’ condition. At the hearing the Tribunal would have liked to have explored with the applicant how he had managed to survive for over a decade without resorting to work. This is particularly in light of the applicant’s counselling expenses of $100.00 per session, which Mr Singh claims the applicant has undertaken for one year and nine months since 16 July 2020 and needs to continue for another year. The Tribunal also notes the applicant has provided the Tribunal with a psychological progress report which carries an additional cost to the applicant.

1. The Tribunal has also considered other relevant matters. The applicant first arrived in Australia on 25 June 2009 on a Student visa (Subclass 572). Since that time he has maintained a continuous residence in Australia for approximately 12 years and 10 months, a significant period of time. The applicant has been an unlawful non-citizen for over nine years since the High Court dismissed the applicant’s judicial review application in June 2011 until applying for his Medical Treatment visa in July 2020. This is a significant period of time which the Tribunal places adverse weight on. From this history, it appears the applicant is prepared to disengage from immigration authorities and only make himself visible when it suits his purpose. Consequently, the Tribunal has serious concerns that the applicant wishes to continue to remain in Australia and that he will continue to do so, even if it means he will become unlawful as he has previously done. This is particularly so given his avenues for remaining in Australia have narrowed

2. The Tribunal has also had regard to the applicant’s migration history which indicates that he applied for permanent residency, namely a [Specified] visa application. The applicant has unsuccessfully sought both administrative and judicial avenues of review. His conduct in seeking a permanent visa indicates that he seeks to remain permanently or indefinitely in Australia. The Tribunal places adverse weight on the applicant’s migration history.

3. There is no evidence that the applicant could not receive medical treatment, including psychological counselling and cognitive behavioural therapy in his home country. The Tribunal also notes that there is no evidence before the Tribunal that the applicant is not able to purchase medication such as anti-depressants in India.

4. The Tribunal has also considered the applicant’s personal circumstances in India and Australia and is not satisfied that the applicant genuinely intends to stay temporarily in Australia. In the applicant’s visa application he claimed that he has a friend and family prepared to financially support him in Australia. On the basis of the applicant’s migration history and the information submitted in his visa application, the Tribunal is not satisfied, that his personal and/or economic circumstances are conducive to him returning to India. Further, the Tribunal notes that the applicant is now 46 years of age having first come to Australia as a 33-year-old. The Tribunal considers that the applicant has now spent a good part of his adult years in Australia, and that starting over in India will present challenges to the applicant. Whatever the motivation for the applicant remaining in Australia, it would appear that the conditions here have encouraged the applicant to continue remaining in Australia and there are little personal and/or economic reasons for him to return to India.

5. Overall, the evidence indicates, and the Tribunal finds, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

6. Given the above findings, cl.602.215 are not met. Based on the cumulative findings above, the applicant does not meet the requirements for the grant of the visa.

   DECISION

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

   Naomi Schmitz
   Member