1707990 (Migration)

[2018] AATA 4529

1707990 (Migration) [2018] AATA 4529 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707990

MEMBER:John Billings

DATE:14 September 2018

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 14 September 2018 at 11:04am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – second Subclass 602 application – Australian citizen son suffers from a rare condition – unable to leave child and apply for an offshore visa – provider of care and emotional support – instability in home country – Convention on the Rights of the Child – Ministerial intervention requested – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 March 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [Ms A], applied for the visa on 21 March 2017. 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 (the Regulations).

3. The delegate refused to grant the applicant the visa on the basis that [Ms A] did not meet the requirements of cl.602.212.    [Ms A] applied to the Tribunal for review on 12 April 2017.  She provided a copy of the primary decision to the Tribunal. 

4. [Ms A] appeared before the Tribunal on 13 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, [Mr B].  Their son,  [Child 1], was present at the hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Lingala and English languages.

5. [Ms A] is a [age] year old national of the Democratic Republic of Congo.  She arrived in Australia on 22 June 2017 holding a Class FA Subclass 600 Visitor visa and has remained in Australia since then.  She was pregnant at the time she arrived.  Before she arrived, [Ms A] applied on 30 March 2016 for a Class UF and Class BC Partner visa on the basis of her relationship with [Mr B].  In [year] she gave birth to [Child 1] who is now [age].  [Child 1] was born prematurely, delivered by caesarean.  He has a number of medical conditions that continue to require treatment: see further below.

6. [Ms A] was granted a Bridging A visa on 19 September 2016.  She was granted a Medical Treatment (Visitor) (Class UB) visa on 23 February 2017.  (She confirmed at the hearing that that visa was granted to her on the basis that she needed medical treatment after giving birth).   The Medical Treatment visa ceased on 23 March 2017.  When [Ms A] applied for the further Medical Treatment visa she indicated that she needed to remain in Australia until September 2017 to attend [Child 1]’s medical consultations.  [Ms A] currently holds a Bridging A visa. 

7. [Mr B] is a [age] year old Australian citizen.  He was widowed in 2015 after many years of marriage.  He has [multiple] adult children [several] of whom are married with children.  [Mr B] and his adult children have been estranged since his first wife died and he married [Ms A], though he provides regular financial support to his youngest child. 

8. [Ms A] and [Mr B] were married in Kinshasa, DRC, in 2016.  With their son they live in [Australian City 1] in rented accommodation.  [Mr B] is an [occupation].  He was declared bankrupt in September 2017.  He attributes this to debts accumulated during his first marriage and the legal and other expenses he incurred in bringing [Ms A] to Australia.       

9. [Child 1] is an Australian citizen by birth. 

10. [Mr B] works full time so [Child 1] is in the full time care of [Ms A].  Writing in April 2017 [a named GP] stated that [Child 1] needs the full time care of [Ms A]. 

11. Since [Ms A] applied for review of the decision to refuse the Medical Treatment visa a decision has been made in relation to the Partner visa application that she made offshore.  The Partner visa was refused on the basis that [Ms A] did not meet the requirements of cl.309.412.  The primary decision in that case, made on 4 June 2018[1], indicates that on 21 August 2017 the spousal relationship was assessed as genuine.  The Department however was waiting for [Ms A] to go offshore so that she would be outside Australia at the time of grant, and so satisfy cl.309.412.  [Ms A] informed the Department that her baby’s medical needs required her to remain onshore[2]. 

    [1] Department file number [deleted].  [Ms A] applied to the Tribunal for review on 26 June 2018.  That matter is pending: AAT reference [number deleted]. 

    [2] [Ms A] submitted to the Tribunal a copy of a statutory declaration by her dated 6 September 2017 evidently made in response to the Department. 

12. [Ms A] told the Tribunal about some health problems that she has now, but she said that she has not seen a doctor for a year or more because she cannot afford to. 

13. [Mr B] told the Tribunal that his and [Ms A]’s mental health has suffered  as a result of [Child 1]’s medical conditions, the wider family and financial circumstances, and the uncertainty about [Ms A]’s visa.  Among other things, the Tribunal heard that because [Ms A] cannot drive [Mr B] takes time off work when their son has to attend hospital or medical appointments so that he can take them, but because he has exhausted his leave entitlements he loses pay when he does so.  (The Tribunal received a report dated 9 August 2016 by [Mr B]’s GP, [a named person], concerning [Mr B]’s health). 

14. The visa application was accompanied by documents that included a small number of hospital and medical reports.  Numerous further hospital and medical reports, especially concerning [Child 1] but also concerning [Ms A] and [Mr B], have been submitted to the Tribunal.  In relation to [Child 1], the documents confirm appointments involving a wide range of specialists during 2017 and 2018.  They includeneonatology, orthopaedics, limb reconstruction, physiotherapy, orthotics and prosthetics, microsurgery, audiology and occupational therapy.  The documents confirm that [Child 1]’s most recent surgery was performed earlier this month.  Further consultations are planned for later this year. 

15. A letter dated 15 July 2018, by [Ms C], Occupational Therapist and [social worker], includes a summary that describes the complications there were when [Ms A] was pregnant.  [Ms C] goes on to say that [Child 1] was born at 31 weeks via emergency C-section after an abnormal CTG (cardiotocography), as it was noted he presented with severe flexion contractures of all joints.  After he was born he remained in hospital for several weeks, requiring intubation and close monitoring of seizures.  He was given a diagnosis of arthrogryposis, a condition causing joint contractures mainly in the upper and lower limbs.  [Ms C] further states that the condition requires many appointments at [a] Hospital in [City 1]. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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. There is no claim, and no evidence that would support a claim, that [Ms A] would meet the requirements of cl.602.212(3),(5),(6) or (7).  The issue is whether she meets the requirements of cl.602.212(2),(4) or (8). 

18. [Ms A] does not meet the requirements of cl.602.212(2) because, in particular, no arrangements have been concluded to carry out any treatment for her. 

19. [Ms A] seeks to give emotional and other support to [Child 1], a person who seeks to obtain medical treatment (including consultation) and arrangements have been concluded to carry out the treatment.  Although [Ms A] applied on the basis that she needed to remain in Australia until September 2017 the material indicates that her need has continued beyond that and will continue for the foreseeable future.  The problem is that [Child 1] is an Australian citizen so he does not hold any of the visas referred to in cl.602.212(4)(b).  Therefore [Ms A] does not meet the requirements of cl.602.212(4) or cl.602.212(8). 

20. For the above reasons [Ms A] does not meet the requirements cl.602.212. 

21. As [Ms A] does not meet the requirements for the grant of the visa the decision under review must be affirmed.

    REFERRAL TO THE MINISTER

22. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.  In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1 – 16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3 (“the Minister’s Guidelines”).

23. The Tribunal notes that [Ms A] is in the community and that she holds a bridging visa.  There is nothing before the Tribunal to indicate that there is any compliance or other concern about her.

24. Among other things, the Minister’s Guidelines state that the Minister may consider exercising his discretion in cases that exhibit one or more “unique or exceptional circumstances”.  The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances.  Most relevantly, they include:

    ·     strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident; and

    ·     circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case

25. Two out of the three members of [Ms A]’s family unit are Australian citizens.  But for [Ms A]’s desire not to depart Australia, because of [Child 1]’s circumstances, she would probably have been granted a temporary Partner visa by now on the basis that a delegate of the Minister has accepted that she is the spouse of [Mr B].

26. This case involves the possibility of ongoing and irreversible harm and continuing hardship to Australian citizens – [Child 1] and his father – and to an Australian family unit.  For [Ms A] not to be granted a visa the possibilities include that she would depart Australia without [Child 1], in which case he would be deprived of the care and support his mother and main carer.  That would be in circumstances where his father has to work full time to support the family.  Another possibility is that [Child 1] would leave Australia with [Ms A], in which case he would be deprived of the care and support of his father and [Mr B] would be deprived of contact with his wife and child. 

27. There could be serious problems for [Ms A] and [Child 1] if they were to go to DRC, not merely because [Child 1] has major ongoing needs for care by health and allied health professionals.  DFAT has given advice about the volatile security and political situation and the very high level of violent crime in that country.  DFAT further advises that the standard of medical facilities is basic in Kinshasa and inadequate outside of the capital.  DFAT reports that outbreaks of Ebola Virus Disease occur in DRC, often in remote areas.[3]

    [3] >

    The Tribunal mentions that before [Ms A] came to Australia she spent time in [Country 1].  She submitted a document to the Tribunal issued by [Country 1] authorities that indicates that she would not be able to go to [Country 1] before 2021.

28. If [Child 1] were not an Australian citizen it seems probable that he would hold one of the visas that would make [Ms A] eligible for a Medical Treatment visa.  In this way the application of cl.602.212 leads to unfair or unreasonable results in this case.

29. The Guidelines contemplate that the Department would inform the Minister on relevant issues including the following:

    ·     circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations

    ·     circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme

30. These issues are relevant in the present case. 

31. Examining relevant factors individually and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

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

    John Billings
    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).