SINGH (Migration)

SINGH (Migration) [2023] AATA 544 (9 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ranbir Singh
REPRESENTATIVE:  Mr Harminder Singh Thiara (MARN: 1803378)
CASE NUMBER:  2202929
HOME AFFAIRS REFERENCE(S):          BCC2021/820405
MEMBER:Naomi Schmitz
DATE:9 February 2023
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 09 February 2023 at 12:19pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – medical treatment requirements – multi-level disc protrusion & bulges – no details of an ongoing treatment plan – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 602.212
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 10 February 2022 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 applied for the visa on 11 January 2022. 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 applicant indicated that he had applied for the Medical Treatment visa as he intended to seek medical treatment in Australia pursuant to subclause 602.212(2). In support the applicant provided the following medical documentation:
a.A referral dated 23 July 2020 from Underwood Family Doctors;
b.Two copies of a CT scan report from Extract Radiology Clinics dated 2 July 2020;
c.A Form 1507 signed by Dr Tran Lal dated 23 July 2020;
d.A letter from Dr Richard Lumley, physiotherapist dated 6 August 2020; and
e.A referral dated 11 January 2022 from Underwood Family Doctors.
The delegate noted that the majority of the medical documents provided were dated 2020, demonstrating a past medical history rather than the applicant seeking medical treatment. Whilst it was acknowledged that the document dated 11 January 2022 demonstrated that the applicant had a referral to Greenslopes Private Hospital, it did not demonstrate that the applicant had an ongoing medical treatment plan. Overall, the delegate was not satisfied that the documents demonstrated that the applicant had an ongoing medical treatment plan. Accordingly, the applicant had not demonstrated that he was seeking ongoing medical treatment in Australia.
The delegate also considered subclauses (3)-(8). The delegate found subclause (3) was not met as the applicant did not seek to donate an organ for transplant in Australia. The delegate was also not satisfied that subclause (4) was met as the applicant was not seeking to support a person holding a Medical Treatment (Subclass 602) visa. The delegate was not satisfied that the applicant met subclause (5) as the applicant was not a citizen of Papua New Guinea. The delegate was not satisfied that the applicant met subclause (6) as he had not demonstrated that he was unfit to depart Australia. The delegate was also not satisfied that the applicant satisfied subclause (7) as the applicant had not demonstrated that he was suffering financial hardship. The delegate was not satisfied that the applicant satisfied subclause (8) as the applicant did not demonstrate compelling personal reasons for the grant of the visa. Accordingly, the delegate was not satisfied that the applicant met subclauses (2)-(8) and therefore clause 602.212 was not met by the applicant.
On 3 March 2022, the applicant applied to the Tribunal for a review of the refusal decision.
On 16 January 2023, the Tribunal invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:
· You are invited to provide information that demonstrates that you meet the requirements of one of the subclauses in clause 602.212(2) to (8) in Schedule 2 to the Migration Regulations 1994 at the time of the Tribunal’s decision.
A copy of clause 602.212 is set out in the attachment to this letter.
The invitation requesting information advised that if the applicant did not provide information pursuant to s.359(2) in writing by 30 January 2023, the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments: s.360(3) of the Act.
On 17 January 2023, the Tribunal wrote to the applicant to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 10:00am (VIC) time on 1 February 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had before it and was unable to make a decision favourable to the applicant.
On 25 January 2023, the applicant provided the following documents to the Tribunal:
a.A CT scan of the applicant’s lumbar spine dated 20 January 2023 which contained the following findings:
There are 5 lumbar type vertebral bodies. They are generally in excellent alignment. There is barely a hint of early endplate degenerated change with a little osteophytic lipping at several levels. The facet joints are actually very well preserved throughout. There are no pars defects.
No paraspinal abnormality seen. No evidence of early Baastrup’s disease (which would be unusual in this age). I cannot identify any significant spinal canal stenosis or definite nerve root impingement at any particular level.
Mild concentric annular bulging is present at L4 disc which is not unusual. This may not necessarily be symptomatic. They were slightly more focal posterior bulge at L5-S1 centrally into the left of centre intimate with the S1 nerve roots as they exit the thecal sac. If there is radiculopathy injection under CT guidance may prove beneficial.
No other focal abnormality seen.
This is not an accurate assessment of the integrity of the discs themselves and annular tears and the status of the nucleus is not determined accurately on CT.
Thank you for referring this patient.
…[signed by Dr Peter Dunn]
Please note: if the patient's clinical presentation, symptoms or signs change and/or progress and DO NOT agree with this report please discuss the findings with me directly as follow up and/or further imaging may be necessary.
b.A handwritten note from physiotherapist Richard Lumley dated 25 January 2023 which stated:
To whom it may concern, re…[the applicant] …[date of birth]
This is to confirm that Mr Singh has attended my practice for treatment of low back pain. His condition responds well to therapy, but he should attend for treatment when necessary to prevent further degenerative change. I see Mr Singh as a compliant patient.
…[signed Richard Lumley]
c.A written statement from the applicant which contained the following claims:
·     That the applicant has suffered back problems since December 2016;
·     He was unable to return to India due to ‘personal circumstances in India’; the COVID-19 pandemic and risk of infection in March 2020;
·     He had been medically advised to avoid long plane flights, as travelling was ‘dangerous’, could result in ‘serious and permanent health issues’ and render him ‘permanently disabled’ if he travels back to India;
·     He had been attending a chiropractor; and
·     He had multiple incentives to return including his parents, siblings and relatives and had great employment prospects as a graphic designer.
d.The referral referred dated 11 January 2022 which stated:
Thank you for seeing … [the applicant] for an opinion and management regarding his low back pain. Please see attached CT Lumbar shows L5-S1 disc protrusion and compression of Left S1 Nerve.
His current medications are: Celebrex 200mg capsule 1 capsule in the evening with meals
Allergies: Nil known
Past medical history: Low back pain
e.Undated CT scan;
f.The passports of the applicant’s parents and two sisters;
g.Property valuation and statement of assets of the applicant’s father in India; and
h.Various academic certificates (Certificate III in Printing and Graphic Arts) of the applicant.[1]
[1] The information referred to in paragraphs 10(c)-(h) was also provided by the applicant at the Departmental stage
The applicant appeared before the Tribunal on 1 February 2023 to give evidence and present arguments. The applicant sought to call evidence from his girlfriend, to attest to them being in a relationship and her providing the applicant with support. The Tribunal Member did not grant the request to give evidence, as the matters to which the witness sought to give evidence on were not relevant to the fact in issue. Further, the witness was not a qualified or registered medical practitioner, or independent from her patient and therefore not able to give expert medical evidence.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
During the hearing the applicant claimed he had a medical appointment on 24 April 2023 and had an email confirmation dated 25 January 2023. The representative provided the email during the hearing. The email stated:
Dear Mr SINGH
Please see below for your appointment details with Dr Richard Laherty:
Date: Monday, 24 April 2023
Place: Suite 325, Level 3, Ramsay Specialist Centre, Newdegate St, Greenslopes, QLD, 4120
Time: 10:30 AM
Kind regards,
Peta
Administration
Queensland Neurosurgery & Spine Surgery
Suite 325, Ramsay Specialist Centre, Newdegate St, Greenslopes QLD 4120
Ph. (07) 3421 6000
Fax. (07) 3397 4185
At the hearing, the applicant requested further time to make further medical arrangements and collate medical material. The Tribunal Member considered the request carefully, however, did not consider the request reasonable and refused the application for an extension of time. The Tribunal Member also did not regard it as reasonable to defer its decision until after April 2023.
The Tribunal Member noted that the applicant applied for the Medical Treatment visa on 11 January 2022, over one year ago and that the applicant had suffered from the same back issues since December 2016.[2] The Tribunal Member was therefore of the view that the applicant had had ample time and opportunity to collate relevant information in support of his application for review. This is particularly in light of the applicant’s claims that he has ongoing symptoms requiring active treatment. Further, the applicant had been put on notice that he was required to provide relevant information since the time of the visa refusal on 11 February 2022, and despite this time, very limited information was provided.
[2] Delegate’s decision record and applicant’s statement to the Tribunal
The Tribunal Member further found the request perplexing given the applicant had recently undergone a CT scan on 20 January 2023 which identified no major abnormalities. It was also noted that the applicant only made the 24 April 2023 appointment upon being invited by the Tribunal to provide information pursuant to s.359(2) and being invited to a Tribunal hearing. This was put to the applicant at hearing, but he could not provide a credible explanation or independent evidence for his lack of efforts since the time of application, which is discussed further below. The Tribunal Member also had regard to the Tribunal’s objective of providing an expeditious mechanism of review pursuant to s.2A of the Administrative Appeals Tribunal Act 1975 (Cth).
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 meets the requirements of subclauses 602.212(2)-(8).
Are the medical treatment requirements met?
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(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:
·the arrangements for treatment have been concluded,
·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia,
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community,
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
At the hearing, the applicant confirmed that he sought to obtain medical treatment and therefore must satisfy clause 602.212(2). The applicant confirmed he was not seeking to satisfy subclauses (3)-(8) for the reasons outlined by the delegate and referred to in paragraph [5] above. In addition, the applicant conceded he could not meet clause 602.212(6) as he is not aged 50 years or over and did not have medical evidence from a Medical Officer of the Commonwealth.[3] This was also confirmed by the applicant’s representative.
The Law
[3] cl 602.212(6)(b) and cl 602.212(6)(f)
Clause 602.212(2) applies to applicants who are seeking to obtain medical treatment, including consultations in Australia. The applicant must demonstrate the arrangements to carry out the treatment have been concluded at the time of the Tribunal’s decision.[4]
[4] cl 602.212(2)(b)
Whether arrangements are ‘concluded’ is a question of fact for the decision maker. The term ‘concluded’ suggests some degree of commitment or finality to the treatment being undertaken. For example, a referral to a specialist but no evidence of an appointment with the specialist being made, or a medical treatment plan with no evidence that it has been committed to, may not satisfy the additional requirement to also be concluded. For medical treatment, Departmental guidelines suggest the following may be relevant:
·     The name and address of the relevant medical practitioner and medical facility in Australia,
·     Written confirmation from the medical practitioner and/or medical establishment that they agree to treat the patient, including details such as:
o   The nature and estimated duration of the treatment;
o   Proposed date of treatment and/or consultation;
o   The possible cost of treatments, and likely treatment scenarios if an applicant is coming to Australia for a consultation only; and
o   If applicable, a proposed date of admission to the relevant medical facility.
Visa application
The applicant identified that he was in Australia, residing in Queensland. The applicant is a citizen of India and is currently aged 44 years of age. At the time of application, the applicant wrote that the purpose of his stay in Australia was for medical treatment. He claimed his stay would be self-funded and in support provided a Commonwealth Bank of Australia statement dated 24 July 2020 with a balance of $30,715.97. The applicant indicated he would be under medical care for approximately one year from 11 January 2022 until 10 January 2023 to seek treatment for ‘Multi-level disc protrusion & bulges. Possibly requires spinal surgery. Physio treatment may be required for pain management’. He estimated cost was between $50,000 to $60,000AUD.
Attached to the visa application was a Form 1507 signed by Pran Lal on 23 July 2020. It detailed the medical condition requiring treatment as ‘multiple level disc protrusion and bulges CT scan report attached’. The treatment information recorded was ‘1. Possibly needs optimal surgery L4/4 + L5/SI because of nerve compression. 2. Physio for pain management’. In support, an undated CT scan of the applicant’s lumbar spine was provided and contained the following comment: ‘Left paracentral L5-S1 disc protrusion compressing the proximal left S1 nerve. There is also left sided neural exit foraminal stenosis compromising the exiting left L5 nerve’.
At the time of application, the applicant declared that he had never married. In the applicant’s visa application, he admitted to having a [permanent] visa and medical treatment visa previously refused.
Evidence at hearing
At hearing the applicant gave evidence that he was seeking the Medical Treatment visa to obtain medical treatment for a multi-level disc protrusion and bulges. The applicant claimed that despite making some improvement, he continued to have problems with his back.
The Tribunal Member enquired as to what actual medical treatment he was seeking. The applicant replied that ‘I think surgery is the best treatment for my problem. I need spine surgery. Don’t know what treatment the doctor is going to give me. I’m not good at medical terminology’. The Tribunal Member asked what medical evidence the applicant was relying upon in support. The applicant claimed that he thought he submitted evidence to the Department last year. The Tribunal Member itemised the evidence filed with the Tribunal and stated that there was no evidence on file that supported the applicant’s oral assertions and whether there was anything he wished to say. The applicant claimed he was examined by Dr Lamberty on an unknown date.
The Tribunal Member asked what arrangements the applicant had made for medical treatment. The applicant claimed to have a medical consultation with a spinal surgeon on 24 April 2023. He stated he had sufficient funds, with financial support from his girlfriend and father. The Tribunal Member stated there was no evidence on the Tribunal’s file in support of this claim. The applicant stated that he had made the booking on 25 January 2023 and during the hearing provided the email outlined in paragraph [13] above.
The Tribunal Member noted the booking was only made after the applicant was invited to provide information pursuant to s.359(2) and invited to a Tribunal hearing. The booking was also made five days after the applicant had undertaken a CT scan which showed no remarkable findings. The Tribunal Member put to the applicant that this raised concerns regarding the veracity of the applicant’s claims and that the appointment was only made to bolster his application, noting the applicant had had over one year since the time of application to make and conclude arrangements. The applicant claimed that he had had difficulty getting an appointment and that he had been receiving ‘treatment from India as well’ and referred to taking some medicine (root extracts).
The Tribunal Member explained as outlined in paragraph [22] that the applicant needed to demonstrate at the time of hearing, that his medical treatment had been concluded and that the email dated 25 January 2023, showed no details of a treatment plan or commitment by the applicant or surgeon. The applicant was asked if there was anything he wished to say. The applicant did not directly answer the question, stating that he was regularly consulting with a physiotherapist approximately twice a month and that his ‘treatment is still running’. The Tribunal Member put to the applicant that the letter provided only evidenced one visitation in January 2023. The applicant maintained that he had been seeing his physiotherapist and ‘daily doing walking’. The Tribunal Member put to the applicant that the CT scan did not support his claims that he required spinal surgery. The applicant claimed the CT scan was insufficient and that he needed a physical examination and MRI. The Tribunal Member asked what had prevented the applicant seeking treatment to date, noting the applicant applied for the visa on 11 January 2022. The applicant replied ‘nothing’.
Findings

The Tribunal has carefully considered the evidence in this matter, including the medical information and the applicant’s viva voce (oral) evidence at hearing. The majority of the documents supplied were historical (dated in 2020) and supplied at the time of the applicant’s original visa application. Of the updated material, the CT scan dated 20 January 2023 did not support the applicant’s oral assertions that he requires spinal surgery or has an ongoing medical treatment plan. Further, there is no evidence to support the applicant’s claims that he requires spinal surgery or further testing such as an MRI or physical examination and the Tribunal regards these claims to be self-serving and not credible.
Whilst the Tribunal acknowledges that the applicant has a consultation scheduled on 24 April 2023, the email contains no details as to an ongoing treatment plan (i.e. the nature and estimated duration, date of proposed treatment/consultation including the proposed end date, cost of treatment and written statement form the treating facility) and the Tribunal regards the information to be insufficient to satisfy cl.602.212(2). The Tribunal does not accept that the applicant has been unable to obtain an earlier consultation or that the surgeon has been unavailable to date, as it is not supported by any independent corroborative evidence. The Tribunal has also had regard to the letter from the physiotherapist, however, regards the letter as vague and unsatisfactory to meet cl.602.212(2). The letter contains no details or evidence of a medical treatment plan, rather the applicant is to attend on his own volition ‘when necessary’. The Tribunal has considered the applicant’s evidence, however, did not find the applicant to be a credible or reliable witness. At times the applicant was evasive and his evidence vague and unsatisfactory.
As outlined in paragraphs [14-16] the applicant has had over one year to prepare his case and collate evidence in support of his application for review. Despite the significant lapse of time, the applicant has failed to advance his case and only upon being invited to a hearing and requested to provide information, did the applicant book a medical consultation. This raises serious concerns regarding the veracity of the applicant’s claims. The Tribunal notes it was also made five days after receiving a CT scan which identified no remarkable findings.
Considering the evidence individually and cumulatively, the Tribunal is not satisfied that the applicant has an ongoing medical treatment plan and is seeking medical treatment in Australia. Given the above findings, the requirements in cl 602.212(2) are not met.
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.
Naomi Schmitz
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).

[2023] AATA 544

9 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction