Singh (Migration)

Singh (Migration) [2021] AATA 2648 (9 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mandeep SINGH
CASE NUMBER:  1931617
HOME AFFAIRS REFERENCE(S):          BCC2019/4782563
MEMBER:Nathan Goetz
DATE:9 June 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 June 2021 at 11:16am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – applicant is not in Australia – no further evidence supporting his claimed medical condition –adverse migration history– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant identifies as a 40-year-old male citizen of India.
On 24 January 2012 the applicant arrived in Australia holding a student visa.
On 15 March 2012 the applicant lodged a temporary graduate visa. This was refused on 9 November 2012. The applicant applied to the Tribunal for a review of the refusal decision. On 16 April 2013 the Tribunal affirmed the refusal decision. The applicant applied sought a review with the Federal Court on 21 May 2013 which remains ongoing.
On 27 August 2013 the applicant sought the Minister to intervene under s.315 of the Act to substitute the Tribunal decision with a decision more favourable to the applicant. This was refused on 20 February 2014.
On 19 May 2014 the applicant applied for a protection visa. On 26 September 2014 this was refused by a delegate. On 27 October 2014 the applicant applied to the Tribunal for review of the refusal decision. On 6 January 2016 the Tribunal affirmed the refusal decision. The applicant applied to the Federal Court for judicial review on 4 February 2016. On 23 August 2018 the Federal Court dismissed the judicial review. On 6 September 2018 the applicant applied to the Full Federal Court against the decision of the Federal Court. On 26 March 2019 the Full Federal Court dismissed the application. On 23 April 2019 the applicant applied to the High Court seeking relief against the decision of the Full Federal Court. On 4 September 2019 the High Court dismissed the applicant’s case.
The applicant applied for the medical treatment visa on 24 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).
On 18 October 2019 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.602.215(1).
On 7 November 2019 the applicant applied to the Tribunal for review of the refusal decision.
On 11 February 2021 the applicant departed Australia.
The Tribunal reviewed the material it had but was unable to make a decision favourable to the applicant. Accordingly, the applicant was invited to appear at a Tribunal hearing to give evidence and present arguments in relation to the issues arising on review of the refusal decision. The invitation advised the applicant of the potential consequences if he failed to appear at the Tribunal hearing.
On 24 May 2021 the applicant was invited to appear at a 15-minute Tribunal hearing scheduled to commence at 11:00am on 9 June 2021. As the applicant was offshore, the Tribunal determined that a telephone hearing was appropriate.
At 11:00am on 9 June 2021 the Tribunal telephoned the applicant on the telephone number he provided in the review application form. The call was unsuccessful. Accordingly, the applicant failed to appear at the Tribunal hearing. Given that the applicant was offshore and had not responded to any of the Tribunal correspondence, the Tribunal was satisfied that it was appropriate to make a decision on the review without taking any further action to allow or enable the applicant to appear at the Tribunal: s.362B(1A)(a). The Tribunal waited until the end of the allocated hearing time before making a decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to the medical treatment visa application form, the purpose of the applicant’s visa application is to seek medical treatment or consultation in Australia. The applicant’s stay in Australia will be self-funded from his own expenses. The applicant wrote that he will be under medical care from 30 September 2019 to 30 December 2019. The applicant wrote that ‘I have stone in my kidney and need urgent treatment.’ The applicant attached a completed Form 1507. The applicant wrote that he was going to receive treatment from Zahur Khan of the Westgate Medical Centre. The completed Form 1507 completed by Zahur Khan indicated that the treatment information was ‘referral to urologist.’
FINDINGS AND REASONS
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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 is such a person.
Is the applicant unfit to depart Australia?
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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The evidence is the applicant is not in Australia and has not turned 50 years of age. There is no evidence to satisfy the Tribunal that the applicant applied for a permanent visa in Australia and appeared to meet all the criteria apart from the health criteria but was refused the visa. There is no evidence that the applicant is medically unfit to depart Australia due to a permanent or deteriorating diseased 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.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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).
The Tribunal has considered the applicant’s migration history and the state of the evidence concerning the applicant’s claimed medical condition.
There is no diagnosis that the applicant has a kidney stone. For all the Tribunal knows, the applicant may have complained about symptoms that the medical practitioner suspected were indicative of kidney stones, requiring referral to a urologist. The Tribunal does not have an evidence to suggest that the applicant has such a condition. There is no evidence that the applicant took up the referral to the urologist, nor is there any evidence about the outcome of this referral. For all the Tribunal knows, the applicant went to the medical practitioner, complained of symptoms that were consistent with a kidney stone, and was never heard from again.
Given that the applicant provided no further evidence supporting his claimed medical condition, and coupled with his migration history, the Tribunal is not satisfied that the applicant applied for the medical treatment visa in order to undertake medical treatment. The fact that the applicant has subsequently departed Australia does not indicate that he remained in Australia for medical treatment. The Tribunal notes that the protection visa was refused and the applicant’s attempts at litigation failed. After this, he applied for the medical treatment visa.
The Tribunal is satisfied that the applicant lodged the medical treatment visa application as a means to remain in Australia as an alternative to residency which could have been provided through the grant of the protection visa. The Tribunal is not satisfied that the applicant genuinely intends to remain in Australia temporarily for the purpose of medical treatment.
CONCLUSION
Given the above findings, the Tribunal is not satisfied that the applicant meets cl.602.215.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Nathan Goetz
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).

[2021] AATA 2648

9 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction