1826606 (Migration)

1826606 (Migration) [2020] AATA 5623 (26 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1826606

MEMBER:Nathan Goetz
DATE:26 October 2020
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 26 October 2020 at 1:51pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – applicant’s daughter undergoing medical treatment – applicant’s daughter is an Australian citizen – lengthy stay in Australia – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215
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 Immigration 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 is [an age]-year-old female who is a citizen of South Korea. She last arrived in Australia [in] August 2003. The applicant applied for the visa on 30 July 2018.
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).
On 27 August 2018 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily for the purpose of medical treatment: cl.602.215.
On 12 September 2018 the applicant applied to the Tribunal for a review of the refusal decision.
On 2 October 2020 the Tribunal wrote to the applicant for two reasons.
The first reason was to invite the applicant to appear by telephone at a Tribunal hearing on 19 October 2020.
The second reason was to invite the applicant to provide information: s.359(2). The invitation was as follows:
You applied for a Medical Treatment visa on 30 July 2018.
You indicated in your application that you wished to remain in Australia from July 2018 to July 2019 for the purpose of undergoing medical treatment.
Your application was refused because you did not meet cl. 602.215. Clause 602.215 requires that an applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
You are invited to provide the following information in writing:
·When did the medical treatment you have undertaken end, or when is it due to end?
·Noting that you first arrived in Australia [in] August 2003 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.
The applicant appeared by telephone at the Tribunal hearing on 19 October 2020. The hearing was conducted as a combined hearing with the applicant’s spouse who also applied for a medical treatment visa, had the visa refused, and applied for the Tribunal to review the decision: AAT case 1826604. The applicant’s spouse also appeared at the Tribunal hearing by telephone. The hearing was conducted with the assistance of an interpreter in the English and Korean languages.
The applicant was represented for the review application by registered migration agent [named]. [The agent] appeared at the Tribunal hearing by telephone.
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 has a genuine intention to stay temporarily in Australia for this purpose.
According to the visa application, the applicant was born in Suncheon Korea. She is married. She wished to remain in Australia from July 2018 to July 2019. She is onshore and will undergo medical treatment, as well as being a person who will accompany such a person. She requested permission to work due to exceptional circumstances. The form asked the applicant to briefly describe the medical treatment in Australia she had arranged and the estimated costs. The applicant wrote medical treatment for her Australian daughter, and also psychological counselling. Funding would be provided through her husband’s work as [an occupation] and members of her Church. She provided the details of her Australian citizen daughter and noted that she lived with her. The treatment is to be provided by [Doctor A]. There was also a completed Form 1507 - Evidence of intended medical treatment (includes consultation) completed by [Doctor A].
The visa application was accompanied by a number of documents.
There was a letter from [Doctor A] dated [July] 2018 who is the doctor for the applicant’s daughter. [Doctor A] wrote that the applicant’s daughter is being treated for a variety of gravely serious medical conditions, the full particulars of which he understands will be attached to this application. [Doctor A] wrote that the applicant’s daughter has a serious [multiple specified medical conditions].
There was a letter from [Doctor B] dated [May] 2018 of the [Hospital 1]. The diagnosis of the applicant’s daughter was [multiple specified medical conditions]. The treatment outlined was [multiple specified medications]. The doctor had reviewed the applicant’s daughter on the day of the letter.
There was a letter from an unknown author dated 20 December 2017 of the [Hospital 1]. The letter details the applicant’s daughter’s problems: [multiple specified medical conditions], and a moderate intellectual disability. The report notes an admission in August 2015 with febrile seizure. There was in MRI scan which found [specified conditions]. There was an epileptic seizure in March 2016. The applicant’s daughter was admitted for a further epileptic seizure in June 2017. There is a [specified conditions]. Investigation for [one condition] in June 2017 found [multiple specified medical conditions]. Medications were noted as [multiple specified medications].
That same report details that the applicant’s daughter is aged [age]. She has been doing well over the last 6 months but has been unwell with acute vomiting for the last 3 to 4 days. She attends school in [a specified class]. She receives vitamin-D daily and is also taking vitamin that contains iron. She had a cognitive assessment conducted by her school in 2015 and this assessment should be adequate to allow her to access NDIS funding.
Reports dated 27 October 2016 and 29 September 2011 by [Dr C] of [Hospital 1], which provide a historical narrative of the applicant’s daughter’s medical problems.
A ‘Statement of Result’ dated [July] 2017 by [a named] School Counsellor who administered test on the applicant’s daughter which found that the applicant’s daughter was in the moderate disability range for ‘Nonverbal IQ,’ in the moderate disability range for ‘general adaptive ability,’ moderate disability range for ‘self-direction, communication and academic skills,’ a mild disability range for ‘social skills and leisure skills,’ and moderate disability range for ‘practical skills needed for school living, community use, health and safety and self-care.’
A report dated [June] 2017 by [Ms A] of [Health Service 1], detailing an initial consultation and assessment. The report notes that symptoms that the applicant’s daughter’s symptoms include cognitive skill problems, such as not remember numbers and letters, emotion dysregulation leading to breaking objects and hitting her mother, difficulty socialising and difficulty regulating emotions, resulting in her becoming aggressive towards others. The letter details the management plan and notes that the applicant’s daughter would benefit from ongoing sessions.
A report dated 9 June 2017 by [Doctor D] who wrote that [Dr C’s] opinion was that the applicant’s daughter has a severe intellectual disability with an intellectual age of 3 to 4 years of age and that she requires the support of a carer at all times.
An Australian Citizenship certificate issued [in] 2017 in respect of the applicant’s daughter. The citizenship was granted on [earlier in] 2017.
The applicant’s daughter’s New South Wales birth certificate.
The applicant’s South Korean passport issued [in] 2013, and the applicant’s daughter’s South Korean passport issued [in] 2011.
A statutory declaration dated 25 February 2018 written by the applicant where she noted that she was the main applicant in a Ministerial Review Request dated [in] February 2018. The family had previously applied for a protection visa based on the health issues of the couple’s daughter. She has dedicated her life to looking after her child, and the care she provided to her child. She noted her daughter’s medical conditions and the support provided to the family from [Church 1] which the family attends. She described that her daughter is part of the National Disability Insurance Agency programme. She wrote that if she and her husband were to return to South Korea her daughter would go with them. She feared that her daughter would find this change brutal and it could harm her health. She did not know how her daughter would cope and does not know if the family will get the support and medical assistance that has been important to her wellbeing. It would be difficult for her daughter who is an Australian citizen. She could not leave her daughter in Australia in an institution.
A statutory declaration dated 4 March 2018 written by [Person A] who has known the applicant’s family since 2005. The author is a long-time volunteer with a service for disabled people that is part of [Church 1]. The declaration detailed the family circumstances.
A letter undated from the applicant detailing his work experience and financial capacity.
A letter dated 20 March 2018 from [Mr A] who wrote that he worked with the applicant at [Employer 1] between 1 April 2014 to 31 March 2015 and noted the applicant’s qualities.
A letter dated 21 March 2018 from [Person B] who wrote that the applicant worked from 3 December 2017 to 28 February 2018 at [Employer 2] and noted the applicant’s qualities.
A letter dated 21 March 2018 from [a health insurer] confirming a recent premium payment of the applicant’s [specified] cover, together with his membership card.
A letter dated 30 March 2018 from [School 1] which details that the applicant’s daughter is in [grade] at that school and currently attends a support class for students with a moderate intellectual disability. An assessment of her congnitive and functional ability indicate that her level of functioning is within the moderate disability range hence meeting the criteria for placement in the support class. The letter details that the class provides an individual programme to meet the applicant’s daughter’s learning needs and notes the applicant’s daughter’s other medical issues that impact on her ability to learn. The letter notes that the applicant’s daughter attends school regularly, enjoys coming to school, enthusiastically participates in class activities, understands the daily schedule of activities, is able to communicate with her peers though her expressive language is limited, gets along well with her peers and is excited to see them each day, and working at pre-Kindergarten to Kindergarten level in literacy activities.
The applicant’s daughter’s semester two report for 2017 from [School 1], noting her strengths and areas for development.
A letter dated 27 July 2017 from [Ms B] of [Hospital 1] noting the family’s financial struggles and asking for financial support.
A letter dated [in] June 2018 from the National Disability Insurance Scheme to the applicant’s wife advising her that she could access the NDIS’ online portal.
In response to the Tribunal’s request for information on 2 October 2020, the applicant provided the following:
A letter dated 29 June 2020 from the [Hospital 1] in response to a referral for the applicant’s daughter’s persistent [medical conditions].
A letter dated 16 October 2019 from the [Hospital 1] stating the applicant’s daughter’s ‘problems’ as [multiple specified medical conditions]. Medications are listed as [multiple specified medications]. The opinion states that the applicant’s daughter has not had a seizure since June 2017 and that she has a low ferritin level.
A letter dated 22 October 2019 from [Hospital 1] providing a diagnosis of [specified medical conditions]. The medical is the same as noted in the earlier letter. The applicant’s daughter had a recent blood test which showed [observations]. There is also poor weight gain. She still has petechiae on the lower limbs and a slightly bowed leg. Her [condition] warrants haematology consultation. There were a number of earlier letters from the same hospital and other organisations which demonstrate the applicant’s daughter’s ongoing health and intellectual problems, most of which had already been provided with the visa application.
A submission from the migration agent that the primary content is the role of the applicant and the applicant’s spouse regarding cl.602.212(4), namely whether they can be regarding as support persons for the purpose of the visa. The migration agent also wrote that the genuine intent may be presented upon the medical history of the daughter of the review applicant. It was suggested that it would be fair to assume that if the applicant’s daughter was obliged to move to Korea death may follow as a result of insufficient or inappropriate medical care. It was submitted that what should have occurred in respect of the daughter was the issuing of a medical treatment visas so that care would have been provided, rather than the issues that had in fact been issued in respect of the applicant and the applicant’s spouse. The submission noted the large medical material available. The migration agent was instructed that the review applicant’s souse has dedicated herself to care, and noted the daughter’s disruptive sleep patterns, the requirements of [the daughter’s health issues] among other things. The submission notes that the daughter trips but does not lose consciousness. She also has [specified symptom] The migration agent submitted that there is a ‘spectre of insufficient medical resources in Korea for an Australian citizen’ and that a protracted stay in such circumstances should not be ascribed an adverse review as to whether the applicant and the applicant’s spouse genuinely intend to stay temporarily in Australia.
Prior to the Tribunal hearing, the applicant provided the following material on 18 October 2020:
A letter dated [June] 2019 from [School 2] confirming the applicant’s daughter’s enrolment in [grade] at that school.
A letter dated [October] 2020 from [Doctor A], confirming that [Doctor A] has been the family doctor of the applicant’s daughter since 2003, confirming that she resides with her parents and detailing her full medical conditions and the fact that she is currently receiving care from her parents, is taking medication and is closely supervised.
A list of daily activities that the applicant and the applicant’s spouse provide for their daughter, together with a ‘Medical Narrative’ provided in a separate document.
At the Tribunal hearing, the Tribunal asked the migration agent to clarify the basis upon which the applicant and the applicant’s spouse sought to be granted the medical treatment visa. The migration agent said that the applicant and the applicant’s spouse sought to met cl.602.212(6)(f), namely the applicant and the applicant’s spouse were 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. The Tribunal pointed out that 602.212.(6) requires that the applicant and the applicant’s spouse to also apply for a permanent visa in Australia, and that the permanent visa appears to have been refused only on the basis that the applicant and the applicant’s spouse did not met the public interest criteria in relation to health. The migration agent then conceded that the applicant and the applicant’s spouse did not met cl.602.212.
The Tribunal then asked the migration agent whether the applicant or the applicant’s spouse met any other criteria to be granted the medical treatment visa. The migration agent said that the applicant and the applicant’s spouse could not meet cl.602.8, because the applicant and the applicant’s spouse did not met the criteria for a ‘support person’ under cl.602.4(b) as the daughter of the applicant and the applicant’s spouse was an Australian citizen. She had been granted citizenship [in] 2017.
The migration agent then said that the purpose of the review application was to seek that the Minister intervene in this case under s.351. The Tribunal notes that this section deals with the Minister substituting the Tribunal decision with a more favourable decision.
As the migration agent had conceded on behalf of the applicant and the applicant’s spouse that neither of them met the criteria for the medical treatment visa, and sought this matter to be determined so a request for the Minister could intervene under s.351, the Tribunal stood the matter down so the migration agent could discuss this matter with the applicant and the applicant’s spouse. The hearing was stood down and resumed after this discussion.
After the hearing resumed, the migration agent confirmed that he had not made a direct submission in the material he provided to the Tribunal about the Tribunal referring this matter to the Minister to exercise the s.351 powers, but submitted that the applicant and the applicant’s spouse met the ‘unique or exceptional circumstances’ requirement under the relevant policy dealing with matters that may be referred to the Minister. The Tribunal notes that the relevant policy for the purpose of referral is dated 11 March 2016.
The migration history of the applicant was detailed in the delegate decision as follows:
The applicant travelled to Australia multiple times in 2002 on a tourist visa. [In] August 2003 the applicant arrived in Australia holding a student visa. Between 31 July 2003 and 16 March 2016, the applicant remained lawful on multiple student visas.
On 14 March 2016 the applicant applied for a protection visa as a dependent. This visa was refused on 23 June 2016. She applied for review of the refusal decision. The refusal decision was affirmed on 17 January 2018.
[In] February 2018 the applicant applied for the Minister to intervene under s.417 of the Act to substitute the review decision with a more favourable decision. [In] May 2018 the request was finalised as not considered.
On 30 July 2018 the applicant applied for a medical treatment visa that is the subject of the review application.
FINDINGS AND REASONS
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
Is the applicant unfit to depart Australia?
Clause 602.215 is only applicable if clause 602.212(6) does not apply.
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.
It was conceded at the Tribunal hearing that the applicant and the applicant’s spouse did not met cl.602.212(6). The Tribunal accepts that this is the case.
Given the above findings, the requirements in cl.602.212(6) are not met.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
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.

The applicant has been in Australia and not left since she last arrived in Australia in 2003. She has applied for a number of visas while she has been onshore. They have been refused and the applicant has not departed Australia. The applicant has her spouse with her in Australia, and she now has an Australian citizen child who has a number of medical conditions which require ongoing support and treatment. To the Tribunal’s way of thinking, the applicant does not have a genuine intention to stay temporarily in Australia for the purpose of medical treatment for her daughter (even if this was an appropriate basis to grant the visa, noting that 602.212(4) does not allow support of an Australian citizen as a basis for the grant of the visa).
The Tribunal is satisfied that the applicant wishes to remain in Australia permanently to support her daughter. The Tribunal is not satisfied that the applicant herself has any condition for which she is seeking or currently receiving medical treatment. There is nothing in the material related to the applicant’s medical issues. The material relates only to the applicant’s daughter’s medical treatment in Australia. In the Tribunal’s view, the submission that there is a spectre of insufficient medical care in Korea for the applicant’s Australian citizen daughter is telling. The applicant’s daughter will not leave Australia because a concern that the standard of care in Korea will not be comparable to that offered in Australia. Given that the applicant’s daughter will not leave Australia, the Tribunal is confident that the applicant and the applicant’s spouse will not leave their daughter in Australia, and that the applicant and the applicant’s spouse will remain in Australia permanently. The applicant and the applicant’s spouse do not intend to remain in Australia temporarily.
Given the above findings, cl.602.215 is not met.
CONCLUSION
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.
REQUEST FOR TRIBUNAL TO REFER MATTER TO MINISTER TO CONSIDER EXERCISE OF POWERS UNDER s.351
The Tribunal has considered the request for it to refer this matter to the Minister. Ultimately the Tribunal has concluded that it should not do so for the following reasons.
First, as the policy makes clear, a request for intervention can generally only be made by a person who is the subject of the request or their authorised representative. There is nothing to stop the applicant or the migration agent making this request themselves.
Second, the policy makes clear that the Tribunal may refer a case to the Minister if the Member believes the issues involved fall within the unique or exceptional circumstances described in the guidelines. The Tribunal is not required to refer a case. It is a discretionary consideration. The Tribunal recognises that all discretions must be exercised reasonably but in the circumstances of this case, the Tribunal believes that it would be unreasonable to refer the matter to the Minister due to the applicant’s migration history.
Nathan Goetz
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).

[2020] AATA 5623

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction