Singh (Migration)

[2021] AATA 3122

Singh (Migration) [2021] AATA 3122 (12 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhpal Singh and Ms Haradeep Kaur

CASE NUMBER:  1912067 and 1912065

HOME AFFAIRS REFERENCE(S):          BCC2019/1794256 and BCC2019/1794388

MEMBER:Linda Holub

DATE:12 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2021 at 4:15 pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicants have given firm instructions to have the matter decided on the papers – an unlawful non-citizen – extensive migration history – no medical evidence was provided– maintaining ongoing residency –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 602.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 3 May 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 applicants applied for the visas on 11 April 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 first named applicant the visa because the delegate found that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residency, and that the applicant does not genuinely intend to remain in Australia on a temporary basis.

4. The delegate was not satisfied that the requirements subclause 602.212(4) were not met by the second named applicant on the basis that the person the applicant seeks to support does not hold a Medical Treatment Visa. The delegate also considered the applicant against the against all the requirements of clause 602.212 (2) to (8) and found that she did not meet the requirements for the grant of the visa.

5. The applicants were represented in relation to the review by their representative.

6. On 28 June 2021 during a period when the Tribunal was not undertaking in-person hearings in Sydney as a result of the Covid-19 pandemic, the Tribunal sent an email to the applicant’s representative asking him to call the Tribunal in regard to making arrangements for the hearing. The representative responded on the same day by email asking when the hearing will occur. The Tribunal emailed an invitation for the applicants to attend a hearing on 13 July 2021 by video link using the Microsoft Teams application.

7. On 5 July 2021 the applicant’s representative emailed the Tribunal noting that the applicants had provided instructions  that the matters be decided on the papers. The following day the Tribunal wrote to the applicants advising that the Presiding Member has considered all the evidence that had been provided and had sent an invitation to a hearing because the Member wanted to ask further questions before making a decision about the applications. The Tribunal’s letter referred to the fact that the applicants’ representative had contacted the Tribunal on 5 July 2021 noting that a request for a decision be made on the papers had been made. The letter to the applicants pointed out that the Tribunal may not be able to make a favourable decision on the written information and evidence that had been provided. The applicants were asked to respond in writing advising they are aware that the decision may not be a positive outcome and that they would like the Tribunal to proceed with a decision on the documentation that had provided.

8. On 7 July 2021 in response, the Tribunal received an email from the applicants’ representative, stating that as previous advised, the applicants have given firm instructions to have the matter decided on the papers.

9. On the basis of the applicants’ representations and that they have confirmed that they seek a decision on the papers and do not wish to attend a hearing, the Tribunal has proceeded to consider the information and evidence available to it. The Tribunal has clearly indicated to the applicants that what has been provided may not be sufficient for their matters to be remitted to the Department for reconsideration.

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

BACKGROUND

11) The first named applicant (referred to as the applicant) was born in April 1980 and is an Indian national.

12) According to the Department’s Decision, the applicant arrived in Australia as the holder of a Student Vocational Education Sector (class TU) (subclass 572) visa in November 2008. On 17 February 2011, the applicant lodged an application for a Temporary Work (Skilled) (class UC) (subclass 457) visa. On the 28 April 2011, he withdrew the application.

13) On 3 November 2011, he applied for a Student Vocational Education Sector (class TU) (subclass 572) visa. This was refused on 11 November 2011. On 14 November 2011, the applicant sought a review of the decision at Migration Review Tribunal (MRT). The decision was affirmed by the MRT on 12 April 2013.

14) On 18 March 2014, the applicant lodged a Protection (class XA) visa application which was refused on 19 August 2014. On 3 September 2014, the applicant sought a review of the decision at Refugee Review Tribunal (RRT). The decision was affirmed by the RRT on 9 November 2015. On 30 November 2015, the applicant lodged an appeal at the Federal Court which resulted in Minister Win being recorded on 9 February 2017.

15) On 8 March 2017, the applicant applied for Ministerial Intervention under Section 417 and this was determined not to be referred on 15 March 2017.

16) On 4 April 2017, the applicant lodged an application for Permanent Protection (class XA) (subclass 866) visa. This was determined to not be allowed due to the Section 48 bar. He again applied for a Permanent Protection (class XA) (subclass 866) visa on 5 April 2017. It was again determined to not be allowed due to Section 48.

17) The applicant currently holds a Bridging E (class WE) (subclass 050) visa. During the applicant's time in Australia, he has been an unlawful non-citizen for 55 days.

18) The second named applicant is the wife of the applicant. She is an Indian national and was born in February 1983. Her migration history shows that she arrived in Australia on a Student Vocational Education Sector (class TU) (subclass 572) visa in November 2008. She has been on a Bridging visa since February 2011.

CONSIDERATION OF CLAIMS AND EVIDENCE

19) The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

Are the applicants unfit to depart Australia?

20) Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl.602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl.602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.

21) The records of the Department indicate that the applicants were in Australia at the time of application on 11 April 2019. Accordingly, the Tribunal finds that they satisfy the requirements of cl.602.212(6)(a). The evidence before the Tribunal indicates that the first named applicant was born in April 1980 and the second named applicant was born in February 1983. Accordingly, the Tribunal finds that they have not turned 50 years of age and therefore they do not satisfy the requirements of cl.602.212(6)(b). 

22) As they do not satisfy the requirements of cl.602.212(6)(b), they are unable to meet the requirements of cl.602.212(6) in its entirety.

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

24) Given the above findings, the requirements in cl.602.212(6) are not met.

25) No evidence was provided that the applicants are medically unfit to depart Australia and therefore the requirement at Clause 602.215 applies.

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

26) 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).

27) In his application, the applicant stated that the applicant would like to remain in Australia until 10 July 2019 to seek medical treatment for Spinal Subluxation. The second named applicant applied on the basis of supporting a person who either holds, or is applying for, a medical treatment visa for either medical treatment / consultation or donating an organ in Australia.

28) No evidence was provided regarding the applicant’s treatment plan at the time of application and no evidence was provided to the Tribunal that the applicant underwent the treatment for which he sought the visa.

29) The Tribunal has considered the applicant’s extensive migration history noting that he first arrived in Australia in 2008 and has applied for a number of visas since that time and on each occasion has been refused. Furthermore, the Tribunal has had regard to the fact that the applicant has sought review of those decisions and on one occasion appealed a Tribunal (differently constituted) decision in the Federal Court. He was unsuccessful in his appeal and his application for Ministerial Intervention was also unsuccessful. The Tribunal takes the view based on the information available to it that the applicant has sought to establish a migration pathway that would allow him to remain in Australia on a permanent basis.

30)  No evidence was provided to indicate the applicant’s intention to depart Australia at the end of his treatment in July 2019. Furthermore, the Tribunal has regard to the fact that the applicant was in Australia unlawfully for a period of time, which reflects poorly on him. The Tribunal also had regard that no information was put that he has intention of departing Australia.:05:39

31) For these reasons, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purposes of obtaining medical treatment.

32) Given the above findings, cl 602.215 is not met.

Does the second named applicant meet the requirements as a support person?

33) Clause 602.212(4) relates to the applicant seeking to give emotional and other support to an applicant in relation to whom the requirements in subclause (2) or (3) are met. Subparagraph (2) relevantly, relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Subclause (4) also requires the person to whom the applicant is to provide support to hold a Subclass 602 visa and the applicant must satisfy PIC 4005. In the case of this decision, clause 602.212(4) applies to the second named applicant.

34) No information was put in relation to the assistance and support provided by the second named applicant. Furthermore, the first named applicant does not hold a Medical Treatment visa and elsewhere in this decision, the Tribunal has affirmed the Department’s decision to refuse him such a visa.

35) Given the above findings, cl.602.212(4) is not met in respect of the second named applicant. No evidence was submitted nor was it claimed that she meets any other sub-clause of 602.212.

36) 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

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

Linda Holub
Member