Singh (Migration)

Singh (Migration) [2023] AATA 559 (9 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harjinder Singh
REPRESENTATIVE:  Mr Shubham Aggarwal, Aggarwal Immigration Consultants
CASE NUMBER:  2111759
HOME AFFAIRS REFERENCE(S):          BCC2021/1474849
MEMBER:Michael Ison
DATE:9 February 2023
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 602.212(4)(a)(i) of Schedule 2 to the Regulations.

Statement made on 09 February 2023 at 5:51pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant is supporting his wife while she receives medical treatment in Australia – applicant is providing meaningful and genuine emotional and other support to his wife – Mrs Kaur met the requirements of clause 602.212(2) – decision under review remit

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

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 on 25 August 2021 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 first arrived in Australia on 20 October 2018 as the holder of a Visitor (Class FA) (Subclass 600) visa that was valid to 20 January 2019.
On 18 February 2019 the applicant was granted his second Subclass 600 visa that was valid to 20 October 2019.
On 3 January 2020 the applicant was granted his third Subclass 600 visa that was valid to 7 April 2020.
The applicant’s three Subclass 600 visas each had conditions 8101 (no work) and 8201 (maximum of three months study) from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) attached.
On 17 March 2020 the applicant applied for an onshore Medical Treatment Visitor (Class UB) (Subclass 602) visa as a support person to his wife, Mrs Kuljit Kaur who had been injured on 27 February 2020 when struck by a car as a pedestrian. That visa was granted on 28 July 2020 and was valid to 26 October 2020. The visa was granted subject to conditions 8101 and 8201.
From 26 October 2020 to 27 April 2021 (inclusive) the applicant was granted four more onshore Subclass 602 visas as a support person to his wife, with the applicant’s fifth Subclass 602 visa being valid to 28 July 2021.
The applicant’s four further Subclass 602 visas each had conditions 8101 (no work) and 8201 (maximum of three months study) from Schedule 8 to the Regulations attached.
On 27 July 2021 the applicant’s wife Mrs Kaur applied for a fifth onshore Subclass 602 visa. That application was refused on 25 August 2021 and Mrs Kaur applied to the Tribunal to review that refusal decision on 3 September 2021 in the related Tribunal review number 2111758.
As the applicant’s wife’s application for a fifth onshore Subclass 602 visa was refused the applicant’s sixth application for a Subclass 602 visa as a support person for his wife was also refused. It is the refusal to grant the applicant a sixth Subclass 602 Medical Treatment Visitor visa that is the subject of this review.
The applicant was granted a Bridging (Subclass 010) A visa on 27 July 2021, which he continues to hold at the time of this decision. The applicant’s Bridging A visa has condition 8101 (no work) from Schedule 8 of the Regulations attached.
The primary decision of a delegate of the Minister
The applicant provided the Tribunal with a copy of the primary decision.
The applicant applied for the visa on 27 July 2021. 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).
The delegate refused to grant the applicant the visa because the primary visa application of his wife, Mrs Kaur, was refused. This meant Mrs Kaur did not hold a Subclass 602 visa at the time of the delegate’s decision in this review, which in turn meant that the applicant could not satisfy the criterion in cl 602.212(4) of being the support person for a person who holds a Subclass 602 visa.
Combined Tribunal hearing with Tribunal review number 2111758
The Tribunal offered to hear the related cases of the applicant and his wife jointly, rather than hold separate Tribunal hearings.
On 14 December 2022 the applicant’s representative advised the Tribunal in writing that having a combined hearing was acceptable to the applicant and to Mrs Kaur.
The applicant and Mrs Kaur appeared before the Tribunal on 8 February 2023 to give evidence and present arguments, in person.
The Tribunal also received oral evidence from Ms Amandeep Kaur, who is married to the applicant’s son and therefore is his daughter-in-law. Ms Kaur gave evidence in person.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in this review by a registered migration agent, Mr Shubham Aggarwal of Aggarwal Immigration Consultants. Mr Aggarwal is referred to in these reasons as the applicant’s representative or the representative. However, the representative did not attend the Tribunal hearing.
At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether he understood the interpreter or had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated he could understand the interpreter and had no objection to the interpreter retained by the Tribunal. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.
Pre-hearing submissions
The Tribunal received the following submissions on behalf of the applicant prior to the Tribunal hearing, with the main, but not all, documents attached to each submission noted:
3 September 2021
·Application for review and the applicant’s current passport.
1 February 2023
·an undated three-page written statement from Mrs Kaur outlining her and the applicant’s ties to their home country, which would provide incentive for them to return to India;
·an undated two-page written statement from Mrs Kaur outlining her injuries arising from a transport accident, her reasons for not providing the requested information to the Department and her future appointments to see a doctor at the Union Medical Centre in Springvale in February and March 2023;
·an undated five-page written statement from Mrs Kaur providing a summary of her involvement in a transport accident and the injuries she sustained, her medical treatment since the accident, her future medical appointments in February and March 2023, her reasons for not providing requested information to the Department and the current family circumstances of the applicant’s son, who lives in Australia with his wife, the witness Ms Kaur;
·a letter dated 23 January 2023 from the Union Medical Centre in Springvale confirming Mrs Kaur’s future appointments to see a specific doctor on 13 and 27 February 2023 and 6 and 20 March 2023;
·a letter from Slater & Gordon Lawyers in relation to the grant of a ‘Serious Injury Certificate’ to Mrs Kaur from the Transport Accident Commission (TAC), dated 15 October 2021;
·a three-page affidavit deposed by Mrs Kaur on 16 August 2021 in relation to her common law claims against the TAC, dated 16 August 2021;
·Mrs Kaur’s two-page Rehabilitation Discharge Summary from South Eastern Private Hospital, discharge date 6 May 2020;
·Mrs Kaur’s two-page Physiotherapy Day Rehabilitation Discharge Summary from South Eastern Private Hospital, discharge date 2 June 2020;
·Mrs Kaur’s four-page medical discharge summary from Alfred Health, service date 2 March 2020;
·Mrs Kaur’s admission medical from Alfred Health, service date 27 February 2020;
·17 pages of Mrs Kaur’s medical records titled ‘Complete Record As at 23/1/2023’ from the Union Medical Centre;
·a letter from an Dr Poonam Arora, Obstetrician and Gynaecologist, dated 17 August 2021 in relation to performing surgery on Mrs Kaur the next day;
·a tax invoice to Mrs Kaur from Springvale Dental Clinic, dated 5 December 2020;
·a screen shot of an invitation for a meeting on 10 December 2021 between Mrs Kaur, her lawyers and a barrister in relation to Mrs Kaur’s common law claim against the TAC date; and
·a letter from Slater & Gordon Lawyers dated 9 August 2021 advising Mrs Kaur an appointment for Mrs Kaur to see an Orthopaedic Surgeon has been made for 26 October 2021.
The Tribunal confirmed with the applicant at the commencement of the Tribunal hearing that these were all of the submissions provided to the Tribunal.
The Tribunal also engaged in other correspondence with the applicant and his representative in relation to administrative matters associated with this review.
Tribunal decision
The Tribunal has had regard to the oral evidence of the applicant, Mrs Kaur and Ms Kaur, all of the information in the written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicant’s application for the Subclass 602 Medical Treatment visa, the documents provided to the Department in support of that application and copies of communication between the Department and the applicant.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
LEGISLATIVE FRAMEWORK
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. To be granted a Subclass 602 Medical Treatment visa an applicant must satisfy the primary criteria set out in cl 602.2 of Schedule 2 to the Regulations.
Subclause 602.211 provides:
The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
Subclause 602.212(1) provides that an applicant must meet requirements in one of subclauses (2) to (8) of cl 602.212. Relevantly, for present purposes, subclause 602.212(2) provides that if an applicant for a Subclass 602 visa wishes to stay in Australia to obtain medical treatment, then they must meet the following:
(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.
Subclause 602.212(4) provides:
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.
Clause 602.6 of Schedule 2 to the Regulations sets out the conditions from Schedule 8 to the Regulations that must or can be imposed on a Subclass 602 Medical Treatment visa. For present purposes, the relevant provisions may be summarised as conditions 8101 (no work) and 8201 (no study for more than three months) must be imposed and condition 8503 (no further substantive visa other than a protection visa) may be imposed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case the applicant seeks a Subclass 602 Medical Treatment visa for the purpose of supporting his wife while she receives medical treatment in Australia, which is one of the approved purposes for the grant of that visa under subclause 602.212(1).
The issue in this case is whether the applicant meets the requirements of subclause 602.212(4) including providing emotional and other support to his wife Mrs Kaur.
Tribunal decision in Tribunal review 2111758
On 8 February 2023 the Tribunal as presently constituted remitted the application for a Subclass 602 Medical Treatment visa of Mrs Kaur back to the Minister for reconsideration with the direction that the Tribunal found Mrs Kaur met the requirements of clause 602.211, subclause 602.212(2) and clause 602.215 of Schedule 2 to the Regulations.
Is the applicant providing emotional and other support to his wife, Mrs Kaur?
Mrs Kaur explained to the Tribunal in her oral evidence the ongoing pain she continues to experience and medical treatment she has received and arranged for the future as a result of the injuries she sustained in the accident on 27 February 2020. The Tribunal accepts Mrs Kaur’s evidence in this regard. Mrs Kaur attended the Tribunal hearing with the aid of a mobility frame and appeared to the Tribunal’s observation to be in some discomfort at times during the Tribunal hearing.
The applicant gave evidence that he assists his wife Mrs Kaur to dress and undress, bathe, go to the toilet and bathroom, with her medications, during the night when she experiences frequent and significant pain, with her mobility, assists when Mrs Kaur frequently forgets things, prepares oils and massages her injured leg and she relies on him to such an extent for this and emotional support in her recovery from the accident that they cannot be separated.
The applicant’s evidence of the emotional and other support he provides to his wife Mrs Kaur was consistent with Mrs Kaur’s oral evidence to the Tribunal and was also supported by the oral evidence of Ms Kaur. Mrs Kaur told the Tribunal, when asked what impact it would have upon her if the applicant had to return to India without her, became visibly upset and said that she cannot get up and stand by herself without her husband’s assistance and is totally reliant on him, particularly given the amount of time her son and Ms Kaur spend out of the house working. The Tribunal observed the physical support the applicant provided to Mrs Kaur at the conclusion of the Tribunal hearing. The Tribunal accepts the evidence of the applicant, Mrs Kaur and Ms Kaur.
The Tribunal finds that the applicant is providing meaningful and genuine emotional and other support to his wife, Mrs Kaur as she continues in her recovery from the significant injuries she suffered in the accident that occurred on 27 February 2020.
Does Mrs Kaur meet the requirements of clause 602.212(2)?
Subclause 602.212(4)(a)(i) requires that the applicant for the medical treatment visa who is seeking medical treatment, being Mrs Kaur, must satisfy the requirements of clause 602.212(2).
In the decision of the Tribunal as presently constituted in the review application of the applicant’s wife, Mrs Kaur, known as Tribunal review 2111758, the Tribunal found Mrs Kaur met the requirements of clause 602.212(2) as follows:
44. [Mrs Kaur’s] evidence, which the Tribunal accepts, is that she is not seeking medical treatment for the purposes of surrogate motherhood or for the transplant of an organ: subclauses 602.212(2)(a) and (c).
45.The Tribunal finds, on the basis of the medical evidence submitted to it by [Mrs Kaur], that arrangements have been concluded to carry out the medical treatment [Mrs Kaur] seeks: subclause 602.212(2)(b).
46.There is also no evidence before the Tribunal that [Mrs Kaur] has a disease or condition that is or may result in [her] being a threat to public health in Australia or a danger to the Australian community: subclause 602.212(2)(d).
47.[Mrs Kaur’s] evidence to the Tribunal, supported by limited court documents, is that the TAC has accepted her claim to have suffered a serious injury arising from a transport accident and therefore has agreed to pay for her reasonable medical costs and expenses. The Tribunal therefore finds that arrangements have been concluded for the payment of all costs related to the treatment and other expenses of [Mrs Kaur’s] stay in Australia and the Victorian State government, through the TAC, has approved the payment of those costs: subclauses 602.212(2)(e) and (f)(ii).
48.The Tribunal finds that the requirements of subclause 602.212(2) are met by [Mrs Kaur].
For these reasons the Tribunal finds that the applicant meets the requirements of cl 602.212(4)(a)(i) if Schedule 2 to the Regulations.
Conclusion
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

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:
·clause 602.212(4)(a)(i) of Schedule 2 to the Regulations.
Michael Ison
Senior Member

[2023] AATA 559

9 February 2023

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Immigration

Administrative Law

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Judicial Review

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