1802485 (Migration)

1802485 (Migration) [2019] AATA 1032 (21 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1802485
MEMBER:Frances Simmons
DATE:21 January 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Statement made on 21 January 2019 at 6:30pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – support for applicant’s mother – failure to meet visa requirements – Ministerial Intervention sought – Australian citizen family members – well integrated into Australian society – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 140, 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 s378 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 Immigration on 22 January 2018 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 December 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).
The applicant did not claim to meet the criteria for the grant of the medical treatment visa. The applicant stated she had lodged the visa application as a pathway to request Ministerial intervention. The delegate refused to grant the applicant the visa because the applicant did not meet clause 602.212 of Schedule 2 of the Migration Regulations.
With the consent of the applicant the Tribunal held a combined hearing on 15 January 2019 in respect of two separately made review applications (AAT case references 1802490 and 1802485). These matters are related because the applicants are sisters and they have applied for medical treatment visas, not because they are seeking medical treatment, but because they wish to request ministerial intervention.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed. Having regard to the Ministerial guidelines relating to the Minister’s discretionary power under s.351 set out in PAM3 “Minister’s guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)” the Tribunal considers it is appropriate to refer this case to the Department to be brought to the Minister’s attention.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant, [name and date of birth], is [an age] year old Italian citizen. She travelled to Australia with her immediate family in March 2009 holding a [temporary business] visa. [The applicant’s] family unit is comprised of her mother ([Mrs A], [date of birth]), her father ([Mr A, date of birth]) and her two sisters, [Ms B, date of birth] and [Ms C, date of birth].
Three of the applicant’s family members are now Australian citizens. The applicant’s mother, father and youngest sister became Australian citizens in 2016. All five family members are currently resident in Australia.
Before the Department and the Tribunal [the applicant] acknowledged that she did not meet the criteria of a medical treatment visa. She has applied for the medical treatment visa in order to pursue a request for ministerial intervention. At the hearing [the applicant] and her sister spoke to the Tribunal about their immigration history and why they want their case to be referred to Minister. [The applicant’s] family members attended the hearing and her mother, [Mrs A], also spoke to the Tribunal about the family’s immigration history.
The applicants were represented in relation to the review by their registered migration agent.
Issue on review
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 clause 602.212, which is a time of decision criterion.
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.
The applicant does not claim to meet clause 602.212. 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). The applicant has not provided any evidence that she is obtaining medical treatment and does not claim to meet the requirements set out in cl.602.212(2)(a) - (f). The applicant does not meet the requirements of 602.212(2) because no arrangements have been made to carry out any treatment on her. Accordingly, the requirements in cl.602.212(2) are not met.
The applicant does not claim and there is no evidence before the Tribunal that she meets the requirements of one of the alternative sub-criteria in 602.212 (3)-(8). The applicant is not an organ donor, has not applied for the visa as a support person, and is not a citizen of Papua New Guinea. As she has not yet turned fifty and has not been refused a permanent visa in Australia on health grounds she is not capable of meeting the unfit to depart criteria in 602.212(6). As the applicant does not hold a medical treatment visa she cannot meet clause 602.212 (7) and nor, on the evidence before the Tribunal, does she meet the criteria in 602.212(8).
The Tribunal finds that the applicant does not meet any of alternative sub criteria in cl.602.212(2)-(8).
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.
Referral for consideration of Ministerial Intervention
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 (s351, s417, and s501J) available in the Procedures Advice Manual 3 (“the Minister's Guidelines”).
The Minister's Guidelines state that cases that have one or more “unique or exceptional circumstances”, such as those described in the guidelines, may be referred to the Minister for possible consideration of the use of the Minister’s intervention powers. The Guidelines then set out those circumstances. The Tribunal considers this case may raise the following circumstances:
a.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 permanent resident; and
b.Circumstances that the legislation does not anticipate and circumstances where the application of relevant legislation may lead to an unfair or unreasonable result in a particular case.
The Tribunal notes the existence of further circumstances raised by the Ministerial guidelines, namely the length of time [the applicant] has been in Australia, her level of integration into Australia and compassionate circumstances regarding the circumstances of her mother, who is an Australian citizen, and an Australian family unit, namely [the applicant’s] parents and her youngest sister, all of whom are now Australian citizens.
[The applicant] travelled to Australia in March 2009 in the company of her family and since that time she has resided in Australia with her family. When she arrived in Australia in 2009 she held a [temporary business] visa as a member of her mother’s family unit. The submissions and statutory declarations before the Tribunal contain serious allegations that [Mrs A] was subject to extortion and exploitation by the former sponsor of her [temporary business] visa. It is also submitted that if [a named business] had not been sanctioned under s.140M of the Act, the applications of [Mrs A], her husband and their three children for permanent residence under the employer nomination scheme would not have been refused.
After [Mrs A’s] application for permanent residence under the employer nomination scheme was refused, [Mrs A] was granted a subclass 155 visa (resident return) [in] December 2012.[1] It appears that this visa pathway was available as [Mrs A] first arrived in Australia in [year] and was a former permanent resident of Australia who was able to demonstrate that she had compelling reasons for her prolonged absence for Australia.
[1] Tribunal file, f. 16.
After [Mrs A] was granted a subclass 155 visa, a partner visa application was lodged in respect of her husband, [Mr A]. [Mrs A’s] three children were included in this partner visa application as dependent applicants. This application resulted in the grant of visas to [Mr A] and [Ms C]. The Tribunal was told that [the applicant] and [Ms B] withdrew from the partner visa application after the delegate for the Minister indicated that neither [the applicant] or her sister were dependent on her parents. It is submitted that the sisters were full-time students at the relevant time however because of their work commitments they withdrew from the partner visa application.
The applicant’s mother, father and younger sister are now Australian citizens. The evidence before the Tribunal indicates that the applicant is well integrated into the Australian community as are her family members. Her parents own property and a [business] in Sydney. Her youngest sister, [Ms C], is enrolled in [a named] University. The medical evidence submitted to the Tribunal indicates that [Mrs A] suffers from [specified conditions] and that she benefits from the care and support of her daughters. It is the opinion of [Mrs A’s] psychologist, [named], that her mental health will deteriorate if she is separated from her two eldest daughters.
[The applicant’s] representative has submitted that no other visa pathway is available to the applicant.
As the applicant acknowledges she does not meet the criterion for the visa, the Tribunal has no choice but to affirm the decision under review. The applicant has provided detailed submissions to the Tribunal in support of her request for ministerial intervention.[2] Only the Minister has the discretion to intervene and take these circumstances into account.
[2] These submissions are accompanied by statutory declarations by the applicant and the applicant’s immediate family members, three of whom are Australian citizens, documentation in relation to the family’s property ownership, business, and immigration history in Australia, citizenship certificates, and medical evidence relating to [Mrs A’s] medical conditions.
Having regard to the circumstances of the applicant as outlined above and the Ministerial guidelines relating to the Minister’s discretionary power under s.351 set out in PAM3 “Minister’s guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)” the Tribunal refers this case to the Department to be brought to the Minister’s attention.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Frances Simmons
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).

[2019] AATA 1032

21 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal