1726666 (Migration)

[2018] AATA 2376

1726666 (Migration) [2018] AATA 2376 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726666

MEMBER:Margie Bourke

DATE:10 May 2018

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) of Schedule 2 to the Regulations.

Statement made on 10 May 2018 at 10:03am

CATCHWORDS

Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Support person – Workplace injury – Emotional support – Arrangements for treatment concluded – Danger to the Australian community ­– Financial support by family – Medical costs and other expenses – Surgery procedure – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

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 12 October 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 applied for the visa on 5 October 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 because the delegate was not satisfied the applicant met the criteria for a Medical Treatment (Support Person) visa, or any of the criteria in cl.602.212.

4. The applicant appeared before the Tribunal on 19 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, and her sister and brother-in-law. The review proceeded as a combined hearing with the applicant’s husband and [children].  The children did not attend or give evidence.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 criteria in cl 602.212(4)(a) for a support person who meets the criteria in cl.602.212(2).

8. Relevant to this review, cl.602.212(4)(a) requires that the applicant seeks to give emotional and other support to an applicant in relation to whom (i) the requirements in subclause (2) or (3) are met.

9. I am satisfied based on the documents provided to the Department including the children’s birth certificates, that the applicant is married to the other applicant [hereafter] referred to as her husband, and that they have [children] together born of their marriage. I am satisfied that the applicant has provided emotional and practical support to her husband as his wife.  I am satisfied that she has provided emotional support to her husband as he has undergone surgery and other treatment.  I am satisfied that the applicant has also experienced emotional difficulties as her husband has suffered physical pain, and has behaved differently at home and around the children, and been frustrated at his lack of improvement and inability to return to work.  I am satisfied that the applicant will continue to provide emotional and other support to her husband as he has further surgery and continues with his psychological therapy.

   Are the medical treatment requirements of cl.602.212(2) met by the applicant’s husband?

10. 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.

11. I am satisfied based on the written and oral evidence before me that the applicant’s husband seeks to obtain medical treatment in Australia.  I am satisfied that the medical treatment is a total [body part] replacement surgery and the subsequent six month recovery process.  I am satisfied that the applicant’s husband seeks to obtain this medical treatment to remedy a workplace injury as previous treatments have been unsuccessful. 

12. Based on the letter from the applicant’s husband’s surgeon dated [in] April 2018 and [in] May 2018, I am satisfied that arrangements for the [surgery] are concluded. 

13. Based on the letter from the applicant’s husband’s lawyers dated [in] September 2016 I am satisfied that the applicant received a payment from Workcover, and is entitled to further medical expenses. Based on the letter from [Company 1] dated [in] May 2018 I am satisfied Workcover approved the further [surgery].    Therefore I am satisfied that arrangements for all medical costs for treatment have been concluded.

14. Where the payment involves cost to a government authority though the insurance process of Workcover, I am satisfied based on the written evidence, that the payment has been approved by Workcover.  I am satisfied that the applicant’s husband based on the documents provided, obtained private health cover, and has the financial support of his brother-in-law. I am satisfied that the applicant’s husband has concluded arrangements to cover any expenses referred to as “gaps” if they should occur.

15. There are extensive medical reports, hospital discharge reports, psychological reports, xray and ultrasound reports and other medical advice provided by the applicant’s husband in support of the reviews and the visa applications. The tribunal has noted there is no request for a Medical Officer of the Commonwealth (MOC) examination, and there is no MOC report on file. There is no evidence before me that the applicant’s husband is not free of disease or condition that may be a threat to public health or a danger to the Australian community.

16. Based on the evidence of the applicant’s husband brother-in-law and sister-in-law I am satisfied that all costs and expenses of the applicant and her family have been and will be met by these relatives.  I accept this is the case because the applicant agreed to attempt to become a surrogate mother for the childless couple, and went through the IVF process for  them.  Therefore I am satisfied that the arrangements for payment of all costs and expenses associated with the stay of the applicant, her husband, and their children have been concluded.

17. There is no evidence the medical treatment involves organ transplant.

18. For these reasons I am satisfied that the applicant’s husband meets the requirements in cl.602.212(2).

19. I am satisfied for the reasons set out above that the applicant seeks to give emotional and other support to her husband, who is a person who meets the requirements in cl.602.212(2). Therefore the applicant meets the criteria in cl.602.212(4)(a).

20. 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

21. 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) of Schedule 2 to the Regulations.

    Margie Bourke
    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).