Singh (Migration)

[2023] AATA 508

Singh (Migration) [2023] AATA 508 (2 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mehtab Singh

CASE NUMBER:  2205155

HOME AFFAIRS REFERENCE(S):          BCC2022/1003726

MEMBER:Scott Clarey

DATE:2 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 2 February 2023 at 2:56pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary entrant – spine problem – visa history – length of time onshore – periods of unlawfulness – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 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).

2. The applicant applied for the visa on 13 March 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).

3. 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 and therefore did not meet cl 602.215.

4. The applicant appeared before the Tribunal on 30 January 2023 to give evidence and present arguments. The applicant did not present any witnesses in support of his claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 has a genuine intention to stay temporarily for the purposes of their Medical Treatment visa.

7. In assessing the application for review, the Tribunal has had regard to all of the information on the Departmental and Tribunal files.

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

8. 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) which requires that an 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.

9. As the applicant was born in 1988, the applicant has not yet turned 50. Given this finding, the requirements in cl 602.212(6) are not met and, accordingly, the requirement in cl 602.215 does apply.

10. In the present case, the applicant seeks the visa for the purposes of seeking medical treatment. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212(2).

11. On 19 December 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The Tribunal explained that it was considering whether the visa applicant met cl 602.215 of the Regulations which requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In the letter, the Tribunal invited the applicant to provide information to support his claims that he meets the criteria for the grant of the visa.

12. In response to the Tribunal’s letter, the applicant provided a submission that included what appeared to be a calendar printout from a chiropractic clinic highlighting various appointments in December 2022 and various dates in 2023; a prescription from a Dr Pradyumn Singh (dated 12 February 2022) for the drug Voltaren; and imaging request for a CT scan dated 12 February 2022; a receipt from a medical imaging centre (dated 14 July 2022); and receipts from a chiropractic clinic named Better Backs Living dated 18 July 2022 and 21 July 2022.

13. I note the following information related to the applicant’s migration history, outlined by the delegate in their Decision Record (unedited):

    The applicant initially entered Australia over thirteen (13) years ago as a holder of a Higher Education Sector (subclass 573) visa and has not departed since this time.

    The applicant’s Higher Education Sector (subclass 573) visa was cancelled by the Department on 20 January 2011.

    The Department decision was affirmed by the Migration Review Tribunal on 28 November 2011.

    On 17 March 2016, the applicant has demonstrated their intention to remain in Australia permanently by lodging a Permanent Protection (subclass 866) visa.

    This application was refused and the applicant has unsuccessfully sought review at the AAT and judicially.

    The applicant has previously overstayed their visa and spent time in Australia as an unlawful non‑citizen for over four (4) years.

14. I discussed the applicant’s visa history with him at the hearing and he confirmed various key elements of it. The applicant confirmed that he first arrived in Australia on a student visa in 2008 to study hospitality management. He said that due to unspecified ‘problems back home’ he could not attend the course at the college he was enrolled at and subsequently complained to the Department. The Department then cancelled the visa and the applicant unsuccessfully appealed decision to the AAT. He said that he remained in Australia unlawfully for a period of approximately 4 years between 2011 and 2016. When asked why he had remained in Australia unlawfully for such an extended period, the applicant gave a vague response stating words to the effect that he lacked sufficient knowledge regarding Australia’s visa system and he held unspecified fears about returning to India. The applicant stated that in March 2016 he applied for a protection visa but this was subsequently refused by the Department. He appealed this decision (unsuccessfully) to the AAT and later sought judicial review (that was also ultimately unsuccessful).

15. At the hearing, I asked the applicant about his medical conditions. The applicant stated that he had a ‘spine problem’ that had begun back in March 2022. He said that he had also developed headaches because of this issue. He currently takes the anti‑inflammatory drug Voltaren to treat these issues. He saw his chiropractor frequently, approximately once per week, and as recently as the previous Thursday. He said he also saw his GP about the issue, but when questioned about this he said he had not seen his GP for 2 to 3 months and couldn’t remember when his last GP appointment took place.

16. I asked the applicant why he could not seek and receive treatment for his medical issues if he were to return to India. He gave a vague response, stating words to the effect that he thought the issue could be treated better in Australia but he acknowledged it could be treated in India also. He said that he had an upcoming appointment to see his chiropractor and he also needed to see his GP. I note that there is no evidence before the Tribunal that suggests the applicant is medically unfit to depart Australia.

17. I asked the applicant if he intended to return to India. In response, he gave a vague answer stating words to the effect that if things changed he might consider leaving Australia, and he was not certain that he wanted to live here unlawfully. He said that he was focused on fixing the issues he had with his spine and he wanted to go back to India to visit his parents, but he said that the situation in India was not good for him.

18. Toward the conclusion of the hearing, the applicant requested additional time to provide the Tribunal with copies of x-rays that had been performed in July 2022. The Tribunal discussed with the applicant the length of time that had elapsed since the Department refused his visa application and the reasons why this information had not been already provided to the Tribunal and asked what additional information these x-rays would convey to the Tribunal. The applicant gave a somewhat confused answer in response. The Tribunal refused the applicant’s request for more time to provide additional information.

    Findings

19. I have formed the view, after considering all of the information before me, that the applicant’s visa history clearly points to him seeking to stay in Australia on an ongoing basis. I note that the applicant has been in Australia for approximately 14 years and has previously applied for a protection visa to remain here permanently. I note also that from information outlined in the Decision Record, and his own admission, the applicant’s extended time in Australia has included prolonged periods of unlawfulness. After reviewing all of the information me, I do not accept that the applicant has a genuine intention to remain in Australia temporarily for the purpose for which the visa is granted, namely medical treatment. While I accept that the applicant has had medical treatment in Australia (including for a back problem) as outlined above, the applicant’s visa history supports the Tribunal’s finding that the applicant is strategically utilising Australia’s visa pathways in order to extend his stay in Australia. While I accept that the applicant has an upcoming appointment with a chiropractor, I do not accept (for the reasons outlined above) that he intends to depart Australia when the treatment (if prescribed) concludes.

20. Accordingly, I find that the applicant does not have a genuine intention to remain in Australia temporarily for the purpose for which the visa is granted, namely medical treatment.

21. Given the above findings, cl 602.215 is not met.

22. 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

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

    Scott Clarey
    Member