Singh (Migration)

[2021] AATA 4023

Singh (Migration) [2021] AATA 4023 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh

CASE NUMBER:  1928365

HOME AFFAIRS REFERENCE(S):          BCC2019/4376429

MEMBER:David Crawshay

DATE:29 September 2021

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 29 September 2021 at 4:59pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant

has given instructions to have the matter decided on the papers – symptoms of depression and anxiety – willingness to remain in Australia beyond the validity of any one visa –adverse migration history– maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, 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 25 September 2019 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 2 September 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 that the applicant genuinely intended to stay temporarily in Australia for the purpose for which his visa was granted, and he did not meet the exception of being unfit to depart Australia. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

4. On 28 September 2021, the applicant’s representative wrote to the Tribunal by email, attaching an authority from the applicant dated 26 September 2021 to request a review on the papers and without a formal hearing taking place. The authority was purportedly signed by the applicant, and the Tribunal accepts based on a comparison with signatures on a Form 1008 “Application for Bridging visa E” dated 11 September 2019, his passport issued in December 2013 and his driver licence with expiry date of 18 November 2019 that the signature on the authority is his.

5. Pursuant to s.360(2)(b) of the Act, the applicant is not entitled to appear before the Tribunal: s.360(3). The Tribunal has therefore proceeded to a decision in this matter without conducting a hearing or seeking further information.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

   Does the applicant satisfy the requirements of cl.602.215?

9. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In this case, the purpose for which the visa is granted is for the provision of counselling according to the “Record of Responses” for a Medical Treatment visa. Elsewhere, in his Form 1507 “Evidence of intended medical treatment”, it was said that the medical condition requiring treatment was “depression” and the treatment information was “anxiety” and “depression”. 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 visas, 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).

   Is the applicant unfit to depart Australia?

10. Clause 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires among other things that the applicant has turned 50.

11. The applicant’s age according to his date of birth on his passport is 35, and the Tribunal accepts that he is 35 years of age. Given that one of the cumulative requirements under cl.602.212(6) is that the applicant has turned 50, it is not met. Because cl.602.212(6) is not met, he does not meet the exception in cl.602.215(2) and must meet cl.602.215(1).

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

12. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. Since September 2019, the applicant has held a Bridging E visa (WE-050) with conditions 8101 (“no work”), 8207 (“no study or training”) and 8506 (“notification”) imposed. In the absence of evidence, the Tribunal accepts that the applicant has complied substantially with the “no study or training” and “notification” conditions.

13. Regarding the “no work” condition, the Tribunal is aware that the applicant had an outstanding debt to the Commonwealth arising from “judicial review” at the time he completed his application form in September 2019 according to that document. In the application form, the applicant stated that he will be supported by “other person” and nominated his cousin, Mr Kulwinder Pal Singh as the provider of that support. The Tribunal has no evidence to show that the applicant has not complied with the “no work” condition imposed on his Bridging E visa, even in spite of his having an outstanding debt to the Commonwealth in September 2019, having had “no work” conditions imposed on his visas since February 2010 according to Department records and having provided no evidence to substantiate his claims regarding the sources of his financial support. In the absence of evidence showing that he has not complied with the “no work” condition, the Tribunal accepts that he has complied substantially with it.

14. The Tribunal accepts that the applicant has complied with the conditions of his last visa. This evidence is given weight.

15. The Tribunal has considered if the applicant intends to comply with the conditions to which a Subclass 602 visa would be subject. As there is no evidence to show that he would satisfy cl.602.212(7) or cl.602.314, the Tribunal considers that conditions 8101 (“no work”) and 8201 (“no study or training for more than three months”) would be imposed on any Subclass 602 visa granted to him: cl.602.611(3). While it considers that discretionary condition 8503 (“no further stay”) may be imposed to provide extra surety that the applicant will leave Australian before the expiry of the visa given his previous migration record, for present purposes it accepts that it would not be imposed.

16. The Tribunal accepts that the applicant intends to comply with condition 8201 in relation to no study or training and this is given some weight. In relation to the question of whether he intends to comply with condition 8101, the Tribunal notes the points raised above in relation to whether he has previously complied with the “no work” condition imposed on his current Bridging E visa. While it has some reservations based on lack of evidence to show the applicant’s income sources, it accepts for present purposes that he intends to comply with condition 8101. This is also given some weight.

17. The Tribunal has lastly considered any other relevant matter.

18. The Tribunal has considered the claimed purpose of the visa. It has considered that the applicant is claimed by his psychologist in a letter of 16 August 2019 to have presented with symptoms of depression and anxiety. He was said to have reported being overwhelmed with feelings of “failure, helplessness and anticipatory anxiety” for not having completed his studies and in relation to the financial costs his family has incurred. It has considered that a medical practitioner stated in a Form 1507 dated 21 August 2019 that the applicant requires treatment for depression. Finally, it has considered that the applicant stated in his application form that he requires counselling for a period of twelve months until 1 October 2020. The Tribunal has considered that, almost one year later, there is no evidence to show that this treatment was not given and there is no evidence to show that any more treatment is needed in relation to these claimed conditions. At hearing, the Tribunal would have questioned the applicant about whether the treatment was given and whether there is any need for further treatment. Absent such evidence, the Tribunal finds that his treatment concluded almost one year ago and that his actions in remaining onshore since do not reveal a genuine intention to stay temporarily for the purpose for which the visa was granted, which was to receive counselling for depression. It gives this evidence weight of an adverse nature.

19. The Tribunal has also considered the applicant’s migration history. Although it acknowledges that he has been a lawful non-citizen at almost all times save for a period of eight days, it also notes that he has made three separate visa applications following the expiry of the second of two student visas in early-2010 – one for a continuation of that student visa, but two other applications which were applications for permanent visas (one of which was found to be s.48 barred). It has considered that he has taken the opportunity to appeal to the courts on two occasions in relation to the same application for a permanent visa and has applied for ministerial intervention in relation to two separate visa applications. While these actions may be open to him, they nonetheless reveal a willingness to remain in Australia beyond the validity of any one visa and for a period of over 11 years following the expiry of his last substantive visa in early-2010, and the Tribunal regards this present visa application as yet another manifestation of this willingness. This evidence is accorded adverse weight.

20. The Tribunal has considered and weighed the evidence in front of it when assessing whether the applicant has the requisite intention according to cl.602.215(1). While it accepts and gives weight to evidence that the applicant has complied with the conditions of his previous bridging visa and intends to comply with the conditions placed on the visa the subject of the review, it gives more weight to other evidence that it considers is indicative of the applicant not having a genuine intention to stay temporarily, such as his migration history over the course of the more-than-11 years since he last held a substantive visa and the fact that he has remained onshore for almost one year following the purported end-date of his treatment.

21. The applicant therefore does not satisfy cl.602.215(1).

22. Because cl.602.215(1) is not met and because the exception in cl.602.215(2) does not apply, 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.

    David Crawshay
    Member