Singh (Migration)

[2021] AATA 4752

Singh (Migration) [2021] AATA 4752 (9 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akashdip Singh

CASE NUMBER:  2003628

HOME AFFAIRS REFERENCE(S):          BCC2019/6549748

MEMBER:Luke Hardy

DATE:9 December 2021

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 09 December 2021 at 3:05pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary entrant – visa history – multiple applications, including for permanent visa, reviews and appeals, and period as unlawful non-citizen – medication but no ongoing consultations – common medication available in home country – period originally applied for now passed – no information provided or submissions made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 7 February 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).

2. The applicant applied for the visa on 9 December 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).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant had a genuine intention to stay temporarily. The following is an extract from the delegate’s decision, containing a summary of the applicant’s migration history:

   Departmental records demonstrate[…] that:

   ·On 17 April 2009, the applicant arrived in Australia as the holder of a Student (subclass

   572) visa.

   ·On, the applicant lodged a Student (subclass 572) visa. This was granted on 19 May

   2011. This was cancelled on 02 May 2012.

   ·On 15 October 2012, the applicant lodged a subsequent student visa which was

   deemed invalid.

   ·On 19 November 2012, the applicant lodged an application for Medical Treatment

   (subclass 685) visa.

   ·On 12 February 2013, the applicant lodged an application for Medical Treatment)

   subclass 685) visa. This was refused on 25 February 2013. On, the applicant sought
   a review of the decision at Migration Review Tribunal (MRT). This was affirmed by the
   MRT on 31 July 2013.

   ·On 03 September 2013, the applicant lodged an application for Combined Partner

   (Subclass 8820/801) visa. This was refused on 17 April 2015. On 07 May 2015, the
   applicant sought a review of the decision at Migration Review Tribunal (MRT). This
   was affirmed by the MRT on 21 December 2015. On 08 January 2016, the applicant
   lodged an appeal to the Federal Court which resulted in Minister Withdrawal on 14
   April 2016.On 15 April 2016, the applicant sought a review of the decision at Migration
   Review Tribunal (MRT). This was affirmed by the MRT on 25 November 2016. On 19
   December 2016, the applicant lodged an appeal to the Federal Court which resulted in
   Minister Win being recorded on 14 November 2019.

   ·The applicant currently holds a Bridging E (subclass 050) visa;

   ·During [his] time in Australia, the applicant has been an unlawful non-citizen for

   approximately 12 months.

   On 09 December 2019, the applicant lodged an application for a Medical Treatment visa. It
   is stated that [he] would like to remain in Australia until 06 December 2020 to seek medical
   treatment for Anxiety and Depression. A form 1507 has been provided in support of the
   application and confirms that the applicant is seeking medical treatment in Australia.

   On 21 January 2020, the applicant was requested to provide information regarding [his] visa
   history. The applicant was afforded 7 days to provide information. To date no information has
   been provided.

   In [his] Medical Treatment visa application, the applicant has not provided sufficient
   documentation to demonstrate [his] intention or incentive to depart Australia now or in the
   near future. Departmental records confirm that the applicant has unsuccessfully applied
   for a permanent visa onshore and [has] taken every opportunity to present [his] case or
   circumstances for review. I find that [his] adverse migration history strongly indicates that the
   applicant intends 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.

   It is necessary for the applicant to satisfy subclause 602.215(1), as they have not satisfied
   the requirements of subclause 602.215(2). 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.

   I am not satisfied that the applicant meets subclause 602.212(6) as the applicant has not demonstrated that they are not fit to depart Australia.

4. The applicant sought merit review of the delegate’s decision and the matter was constituted to me. I find that the review application is valid.

5. I exercised discretion to hold the hearing by telephone in light of the COVID-19 pandemic. I determined it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, wishing to avoid undue delay to the matter were the hearing not to be conducted by telephone.

6. The applicant thus appeared before the Tribunal by telephone on 9 December 2021 to give evidence and present arguments. The Tribunal hearing was facilitated by an interpreter in the Punjabi-English medium, also via telephone.

7. There were no significant audio or other technical issues. The applicant was happy to proceed by telephone. There was one brief adjournment in the middle of the hearing. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. For the following reasons, I have decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 was genuinely seeking to obtain medical treatment, whether he genuinely intends a temporary stay and, if not, if he is medically unfit to leave Australia.

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

11. At the hearing, there was discussion of the applicant’s migration history. In particular, the applicant mentioned a partner visa application that was refused on credibility grounds.

12. The applicant told me that in his original application for the visa currently sought, he sought permission to remain in Australia from 9 December 2019 to 6 December 2020 for treatment of depression and anxiety. Observing that the applicant had remained in Australia on a bridging visa for the last two years, and noting that in his application he said he would be able to support himself for the twelve months originally sought, I asked the applicant what treatment he had received. In reply, he said he had been prescribed Escitalopram at 10mg/day. Asked to describe any other treatment or therapy, he indicated there was none. Evidently there has not even been any monitoring here of the efficacy of the dosage of the anti-depressant Escitalopram.

13. Relevant to whether the treatment sought might be easily available in India, the applicant’s home country, I referred to evidence of escitalopram 10mg being available in India for the equivalent of AUD1.40 a day.[1] In response, the applicant said he had not been aware of these facts. I suggested that they were easy to find in a Google search.

    [1]

14. I asked the applicant why he would not be able to obtain the same treatment in India, and he said that he had not gone back there for a long time and did not know “if they’ll be able to treat me properly or not.” He said, “I don’t know or trust doctors there.”

15. I put to the applicant that 6 December 2020 was more than one year ago and that the bridging visa issued to him in December 2019 had given him 24 months, so far, rather than merely 12. In reply, he said he is still taking the medication. I asked him if he had had any progress in the two years since indicating that he would seek treatment, and he said, “Sometimes I feel OK and sometimes not.” He provided no medical evidence to support any of the evidence he gave at the hearing. He said that old memories sometimes come into his mind.

16. The applicant said his parents are both working in agriculture. He said this was his occupation in India. He asked if he could have more time to write a statement in response to concerns raised at the hearing. Recalling that he had been provided with opportunities to comment on all such concerns and noting that he had not submitted anything since the delegate’s 7 February 2020 refusal, I declined to set a timeframe for further submissions.

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

17. 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.

18. On the evidence the applicant provided to me, he sought and was refused a medical treatment visa after his student visa was cancelled in 2012. He later lodged a partner visa application that was found to lack factual merit. He remained illegally in Australia for 12 months after his partner visa application matter was finalised.

19. Have considered this history alongside the evidence of the purported treatment sought. All the treatment the applicant has received has been the prescription and dispensing of an evidently mild dosage anti-depressant that is widely and cheaply available in India, and the only reason why the applicant has not returned to India and continued on that dosage is that he has not taken the trouble to see if it is available there. He said something about not trusting doctors in India, but he did not make out that claim in any persuasive detail. Although he implies he trusts doctors here in Australia, there has been no monitoring of his condition or of the efficacy of the drug he claims to have bene prescribed. Overall, I have given some negative weight to the applicant’s claims about the gravity of his condition, the “treatment” received and the absence of available treatment in India.

20. The applicant did not provide satisfactory evidence as to any progress in his “treatment” either way after what is now 24 months. I have given this problem some weight in my assessment as to whether he genuinely intends only a temporary stay.

21. I have given some negative weight to the applicant’s migration history, specifically the unsuccessful partner visa application and the period spent as an unlawful non-citizen. He did not comply with his student visa or with the conditions of the bridging visa issued in connection with his partner visa application. In this light the applicant’s recourse to a medical treatment visa on two occasions in his life, after other visas were either cancelled or refused, strikes me as disingenuous.   

22. On the evidence overall, I am not satisfied that the applicant genuinely intends to remain in Australia only temporarily for the purposes of medical treatment. There is not even sufficient evidence of medical need of the prescribed drug for me to be satisfied that the medical treatment is genuinely required.

23. In addition, the applicant being only 31 years old, cannot meet cl.600.215(6)

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

25. 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

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

    Luke Hardy
    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).