Singh (Migration)

Singh (Migration) [2020] AATA 1064 (14 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Balkar Singh
CASE NUMBER:  1928493
DIBP REFERENCE(S):  BCC2019/4553321
MEMBER:Louise Nicholls
DATE:14 April 2020
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 14 April 2020 at 3:45pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – non genuine intention to stay temporarily – applicant was an unlawful non-citizen – strong motivation to remain in Australia indefinitely –adverse migration history– medical treatment available in India -decision under review affirmed

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of India and is 40 years of age. He first arrived in Australia in August 2007 as the holder of a Subclass 573 student visa. He has held a series of student visas, temporary residence visas and bridging visas since that time.
The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 10 September 2019. He provided a copy of the biodata page of his Indian passport issued on 12 October 2015 and a Form 1507 (Evidence of intended medical treatment) completed by Dr Mark Smith, Westmead Hospital on 26 August 2019.
The applicant also provided a copy of a letter from Westmead Hospital dated 16 August 2019 advising the applicant that he has been placed on an elective surgery waiting list. He also provided a letter dated 2 September 2019 from a friend, Jitender Kumar, who stated he was giving the applicant the sum of $15000 to cover the costs of his surgery, together with Mr Kumar’s bank statements.
On 24 September 2019 a delegate of the Minister for Immigration refused to grant the application under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.
This is an application for review of that decision, and it was lodged on 9 October 2019. The applicant provided a copy of the delegate’s decision record with the application.
The applicant appeared before the Tribunal on 12 March 2020 to give evidence and present arguments. The applicant gave evidence regarding his background, migration history and current circumstances. He also gave evidence on behalf of his wife and son in respect of their applications.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION
At the time of application, 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 (the Regulations).
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.
Relevantly to this matter cl. 602.215 provides
(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.
The issue in this case is whether the applicant has a genuine intention to stay temporarily in Australia for the visa purpose.
Background
The applicant gave evidence at a combined hearing of the applications of the applicant, the applicant’s wife and his son. All applicants have applied for medical treatment visas and the applicant gave evidence in his own matter as well as evidence on behalf of his wife and son.
The applicant is 40 years of age, his wife is 29 years old and his son is six years old. His son was born in India.
The applicant was born and grew up in a town in Haryana State about 200 kilometres from Delhi. His wife is also from Haryana and her hometown is about 40 kilometres from his home. He married in 2012, his parents are alive, and he has 6 siblings living in Haryana. His parents are involved in farming work. His father is a farmer and his mother is a housewife.
The applicant arrived in Australia as a student visa holder in 2007. He initially enrolled in a Master of Business Administration Course (MBA) but after a year he transferred to a Certificate III course in Patisserie. He stated that the cost of the MBA was too much for himself and his family. He finished his patisserie course and then completed a one-year Diploma in Business from Strathfield College.
He worked in the hospitality industry and obtained a temporary work visa which he held for about 18 months. He was then sponsored by a restaurant owner for Subclass 457 temporary work visas from 2014 to 2018. He applied for a permanent work visa on the basis that he had been working for 4 years in the same business, but he later found the restaurant had closed down and the sponsor was not able to provide the required documents for that visa.
In about 2017 he found out he had stones in his salivary gland. He was given antibiotics and one stone passed but one of the other stones increased in size and he was advised to have surgery to remove the stone. He decided to go ahead with the surgery as he had been getting medical treatment in Australia for 2-3 years and he trusted his Australian doctors. When the Tribunal put it to him that he could have the surgery in India, he claimed he was not confident with Indian doctors. When it was put to him that he could obtain good medical care in India, he stated that he had a bad experience in India because his brother in law had been diagnosed with cancer and later died. The Tribunal put it to him that cancer is a serious illness and many cancer sufferers do not survive in Australia.
The Tribunal noted that the most recent letter from Westmead Hospital stated the waiting time for the surgery was 87 days.
The Tribunal asked the applicant about the period he was unlawful. He stated he was not aware he was unlawful at the time and was not sure why he was late in making his vis application. He claimed he had always met the conditions of earlier visas.
The Tribunal put it to him that he had applied for many visas since 2007. He stated they were all temporary visas except the “Subclass 190” visa application which was a permanent visa application. He stated he almost returned to India in 2014 but the restaurant at which he was working sponsored him to continue working. At the time he applied for permanent residence people told him Australia was a good country and he should apply. He also stated he could have applied for a permanent visa in 2012 but chose not to do so because he intended to return to India at that time.
The Tribunal asked him if he could provide any other evidence that he intended to return to India after he obtained medical treatment. He stated his family are in India, but he did not know how he could provide other evidence. He stated his son was in Grade 1 in a local primary school. He could not point to any arrangements that he had made for his return to India. His lease was not a fixed term and he could leave with two weeks’ notice, he had an old car which could be sold easily. He claimed he owned a farm and a house in India and did not need a job when he returned. He had saved a little bit of money.
Migration and visa history
The applicant provided a copy of the delegate’s decision record and gave evidence regarding his migration history.
The decision record notes that
·The applicant first arrived in Australia on 13 August 2007, as a holder of a Student Higher Education Sector (subclass 573) visa.
·On 12 March 2010, the applicant applied for a Student Vocational Education Sector (subclass 572) visa. The visa was granted on 30 June 2010, which was effective until 28 July 2010.
·On 26 July 2010, the applicant applied for a Skilled (subclass 485) Graduate visa. The visa was granted on 7 March 2012, which was effective until 7 September 2013.
·On 6 September 2013, the applicant applied for a Temporary Work (Skilled) (subclass 457) visa. The application was refused on 22 January 2014. The applicant unsuccessfully sought a review for the refused application, which was later withdrawn.
·On 7 March 2014, the applicant applied for another Temporary Work (Skilled) (subclass 457) visa. The visa was granted on 3 April 2014, which was effective until 3 April 2018.
·On 3 April 2018, the applicant applied for an ENS Temporary Residence Transition (subclass 186) visa[1]. The application was refused on 24 June 2019 on the basis the nomination not approved.
·During the applicant’s time in Australia, between 29 July 2019 and 13 September 2019, the applicant was an unlawful non-citizen for 47 days and did not contact the Department to resolve or regularise his migration status.
[1] ENS Temporary Residence Transition (subclass 186) visa is a permanent visa for applicants who have been in Australia on temporary employment visas (either the Subclass 457 or 482) for a specified period (2 or 3 years depending on the circumstances).
At the hearing the applicant stated he had applied for a Subclass 190 visa in 2018, however, there is no other evidence before the Tribunal of such an application. The delegate refers in the decision to an application for an ENS Subclass 186 visa which is an employer nominated permanent visa. The Tribunal considers this is the visa subclass which the applicant identified in his evidence as the only permanent visa application he had made.
The delegate referred to the applicant’s adverse migration history in the Departmental decision. However, it is not correct to characterise the applicant as having an “adverse migration history”, because other than for a relatively short period of unlawfulness, there is no suggestion that he has been dishonest or failed to comply with previous visa conditions. He has, however, sought to extend his residence in Australia through serial visa applications. This Tribunal considers this conduct is indicative of an intention to remain in Australia and not to return to India as claimed.
The applicant claimed that he does not have an interest in obtaining permanent residence, however, the Tribunal does not accept this evidence. It considers his continued residence in Australia since 2007, his application for several visas and his application for a permanent residence visa in 2018 indicates that he does have an intention to remain in Australia either permanently or indefinitely.
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.
The applicant gave evidence he is 40 years of age and provided a copy of his passport which shows his date of birth as 1 January 1980. On the evidence before it, the Tribunal finds the applicant is in Australia but has not turned 50 years of age.
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).
As set out above the applicant does not meet the requirements in cl. 602.212(6). Thus, the applicant is required to meet the requirements in cl.602.215.
Taking the following matters into account the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Has 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?
The last substantive visa held by the applicant was a Temporary Work (Skilled) (subclass 457) visa which ceased on 3 April 2018. There is no evidence that the applicant failed to comply with the visa conditions of his last substantive visa or any subsequent bridging visas.
The delegate noted that the applicant had been unlawful for 47 days in 2019. At the Tribunal hearing the applicant stated he was not aware that he was unlawful and could not explain why he had not taken steps to ensure that he had a visa during that time. The Tribunal notes that the applicant has been in Australia for the last 13 years. In the context of being generally compliant with visa conditions it does not consider this period of unlawfulness is a significant issue in the assessment of the applicant’s intentions.
Does the applicant intend to comply with the conditions to which the Subclass 602 visa would be subject?
Medical treatment visas are subject to condition 8201 (No studies) and may be subject to 8503 (The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia).
There is no evidence that the applicant intends to study while in Australia and the Tribunal accepts that the applicant will comply with condition 8201.
With respect to condition 8503 the applicant notes that the applicant applied for several visas and has lived in Australia for 13 years. Despite his last visa application being refused, he has remained in Australia and has applied for a medical treatment visa.
The Tribunal considers that the applicant has a strong motivation to remain in Australia and that if condition 8503 is placed on any visa it is probable, given his history, that he will take steps to obtain a waiver of such a condition.
Other matters which are relevant to assessing the applicant’s intention.
At the hearing the Tribunal discussed the purpose of a medical treatment visa and the requirement that an applicant must have a genuine intention to stay in Australia temporarily for the stated purpose.
The Tribunal notes that the applicant has lived in Australia since 2007 and has held several temporary visas. In 2018 the applicant applied for a visa which, if he were successful, would have resulted in permanent residence. He also stated at the time he made that application that he had been interested in permanent residence. The applicant is married, and his wife and child are living with him in Sydney. His son is attending primary school and the family appear to be well settled.
The applicant suffers from a condition in which he has stones in his salivary glands. He gave evidence he was originally diagnosed in 2017 and was prescribed antibiotics for the condition and now is on an elective surgery waiting list. While the Tribunal accepts that the applicant suffers from this condition there is no medical evidence which indicates the nature or extent of his condition or whether surgery is necessary.
As discussed with the applicant the Tribunal considers that he could access health care services if he returned to India. The latest country report from the Department of Foreign Affairs (DFAT) notes that while public health care funding comes mainly from the central government, each of the state governments is responsible for the delivery of medical services. Since 2017, the Indian government increased health spending and focused on improving the availability and efficiency of services. They are committed to moving India towards universal health care and relaunched a programme which incorporates state-run and national schemes with the aim of providing coverage of up to US $10,000 for over 100 million lower income families.
The Tribunal has considered whether the applicant has complied with conditions of his last substantive visa and bridging visas, whether he will abide by conditions to which the visa would be subject, and the other factors set out above.
Firstly, there is no evidence of non-compliance before the Tribunal and no evidence of an intention not to comply with mandatory conditions of a medical treatment visa.
Notwithstanding, the Tribunal has considered other matters relevant to the assessment of whether the applicant has a genuine intention to stay temporarily for the purpose of medical treatment. It finds the applicant has a strong motivation to remain in Australia on a permanent or indefinite basis. He has lived in Australia since 2007, he has applied for several visas, he applied for a permanent visa in 2018 and his family appear to be well settled in Australia. Other than for his own oral evidence that he intended to return to India after his medical treatment is completed, he could not provide any other evidence which supported this intention, such as any concrete arrangements for his return to India. The Tribunal accepts that he has a medical condition but there is no evidence that he needs to remain in Australia to obtain treatment for his condition. It considers that these factors outweigh other factors which might suggest the applicant has a genuine intention to stay temporarily in Australia for medical treatment.
Given the above findings, cl.602.215 is not met.
Conclusion
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Louise Nicholls
Senior 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).

[2020] AATA 1064

14 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction