Singh (Migration)

[2021] AATA 5259

Singh (Migration) [2021] AATA 5259 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahendra Pratap Singh

CASE NUMBER:  2010163

HOME AFFAIRS REFERENCE(S):          BCC2020/128933

MEMBER:Mark Bishop

DATE:28 October 2021

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 28 October 2021 at 10:37am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – medical treatment requirements – stroke – immobile and relies on adult children to provide all necessary support – genuine temporary entrant – unfit to depart – life-saving treatment not available in Fiji – decision under review remitted

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 1 June 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 30 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).

3. The delegate refused to grant the applicant the visa because the applicant failed to satisfy cl.602.215(1) and cl.602.215(2).

4. The applicant appeared before the Tribunal on 28 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants in case numbers 2010167, 2010170,2010173 and 2010172.  At the request of the applicants all 5 cases were heard together. The applicants in case numbers 2010167 (Sheryl Sharika Singh DOB 30 August 1986) 2010170 (Anjulesh Ashana Singh DOB 14 January 1982) 2010173 (Kushmila Wati Singh DOB 15 December 1960) and 2010172 (Anal Ravneel Singh DOB 27 July 1988) are members of the family unit of the applicant in this review application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 Genuine Intention to Stay (GIS) and Unfit to Depart UtD).

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

7. 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.

8. Clause 600.215 provides as follows:

   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.

9. Clause 602.212(6) as attached to this decision provides as follows:

   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.  

10. Clause 602.212(6) does not apply in this case because whilst the applicant is medically unfit to depart Australia due to a “permanent…health condition” it (the “permanent…health condition”) is not “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)

11. The delegate summarised the applicant’s immigration history as follows:

    ·On 14 June 2007, the applicant last arrived in Australia as the holder of a Temporary Skilled (subclass 457) visa.

    ·On 15 September 2008, the applicant lodged an application for a further Temporary Skilled (Subclass 457) visa which was refused on 12 October 2010. The applicant unsuccessfully sought review of the decision at MRT (Migration Review Tribunal).

    ·On 31 December 2009, the applicant lodged an application for a Regional Sponsored Migration (Subclass 857) visa which was refused on 21 January 2011. The applicant has unsuccessfully sought review of the decision at MRT (Migration Review Tribunal).

    ·On 02 July 2012, the applicant lodged an application for a Permanent Protection class XA visa which was refused on 28 March 2013. The applicant has unsuccessfully sought various avenues of review including High Court.

    ·Between 22 November 2013 and 30 April 2019 the applicant has unsuccessfully sought Ministerial Intervention on four occasions.

    ·The applicant currently holds a Bridging visa E (class WE) (subclass 050) visa.

    ·During their time in Australia, the applicant has been an unlawful non-citizen for one month.

12. The Tribunal examined the applicant on all aspects of cl.602.215 (1) and (2) inclusive of cl.600.215 (1)(c) being “any other relevant matter”.

13. On 25 October 2021 the applicant provided the Tribunal with a written submission signed by Dr. C. E. Connolly, Senior Staff Specialist in Rehabilitation Medicine. This submission outlined the qualification of the treating doctor, his diagnosis, the current treatment plan and stated the following

    ·Mr Singh will be unable to follow the recommended treatment plan in Fiji (reasons given).

    ·Overseas travel will be detrimental to his health. Mr Singh is frail, immobile and unable to independently toilet. His disability makes him vulnerable to infection. The stress involved could result in a further stroke. As his treating medical specialist, I advise against travelling overseas.

14. The Tribunal gives the submission summarised immediately above weight.

15. The delegate summarised in considerable detail various submissions and evidence related to unfitness to depart following the applicant’s lodging of an application for a Medical Treatment visa on 30 March 2020. It is stated that the applicant would like to remain in Australia until 30 March 2025 to seek medical treatment for rehabilitation after suffering a stroke in April 2019 and cerebrovascular accident.

16. In respect of the matters outlined in paragraph 9 above the delegate made the following findings:

    ·    “I accept that the applicant is seeking medical treatment in Australia, however the applicant is also required under clause 602.215 to demonstrate "intends to stay temporarily in Australia for the purpose for which the Visa is granted".

    ·    In the 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. Whilst I acknowledge the applicant has provided a response to the request for evidence of intention to depart, the applicant has stated that he has a son in Fiji. I give this little weight as the applicant has not left Australia to see his son since 2007. Therefore, I do not consider this response from the applicant to reflect a strong intention or incentive for the applicant to depart Australia now or in the near future.

    ·    Departmental records confirm that the applicant has unsuccessfully applied for a temporary and permanent visas onshore and has taken opportunity to present their case or circumstances for review. I find that their 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.”

17. In the response to the letter of invitation to attend the hearing the applicant advised as follows:

    ·He would participate in the hearing.

    ·He had a left side minor stroke and he cant walk and talk properly and his left hand side of body is not function (sic).

    ·He did not intend to rely on any documents at the hearing.

    ·A witness would give evidence at the hearing. He later advised this witness was not available.

18. At the hearing all 5 applicants sat together in the family home and the Tribunal examined each separately. As advised the applicant in this review application was unable to speak because of his stroke. His family members (adult children) all responded to Tribunal questions. From that evidence it is clear the entire family has lived and worked in Australia since 2006 mainly in the banana plantation industry, have visited Fiji only once since 2006, do not hold separately or jointly any assets in Fiji, receive no income from Fiji and did not make any reference to any family remaining in Fiji.  In more recent years the adult children have embarked upon their own careers. The five applicants all live together in the family home at Mt Druitt. Because of the fathers’ stroke and separate major illness suffered by the mother (case number 2010173) the adult children share family obligations to look after their ill parents and also provide the major source of income to the family.

19. As outlined above on 25 October the applicant provided the Tribunal with a medical opinion from his treating medical specialist. As relevant that document is summarised at paragraph 13 above. As stated the Tribunal gives it weight.

20. The evidence before the Tribunal is that the applicant has only one reason to remain in Australia. It is to continue with treatment that is at a minimum life enhancing but more likely life-saving and not available in Fiji. The Tribunal is of the view the applicant has little choice. Remain in Australia and receive first class medical treatment whilst receiving critically necessary and unavoidable support from family or depart to his home country and face the unfortunate vagaries of a medical system that cannot provide the necessary treatment outlined by his long standing treating medical specialist in Australia.

21. It is correct to observe as the delegate did that “the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence” In the circumstances of this review application the applicant has little choice. He has suffered a stroke, is immobile, relies on his adult children to provide all necessary support (dressing, showering, toiletry, visits to medical providers, shopping and home maintenance). For the reasons outlined in paragraph 20 above the Tribunal finds this to be a relevant consideration under cl.602.215 (1) (c).

22. Given the above findings, the requirements in cl 602.215(1) are met and accordingly, the requirement in cl 602.215 does apply.

23. Given the above findings, cl 602.215 is met.

    Concluding paragraphs

24. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

    DECISION

25. 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.

    Mark Bishop
    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).