2219181 (Migration)

[2023] AATA 3756

2219181 (Migration) [2023] AATA 3756 (18 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2219181

MEMBER:Michael Judd

DATE:18 August 2023

PLACE OF DECISION:  Perth

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

Statement made on 18 August 2023 at 1:20pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Federal Circuit Court remittal – original application as support person for partner – partner’s visa not granted – no longer in partnership but continuing to provide support – later claims for own treatment – surgery completed – no updated information provided and consent to decision without hearing – no basis to reasonably find requirements satisfied – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cls 602.211, 602.212(4), (6), 602.214, 602.215

CASE
SZBYR v MIAC (2007) 81 ALJR 1190; [2007] HCA 26

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 Home Affairs on 22 June 2020 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The matter is before the presently constituted Tribunal consequent upon remittal by consent from the Federal Circuit of Australia – see details below.

2. The applicant applied for the visa on 29 April 2020. 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 applicant claimed in her application for the visa that she was seeking a medical visa on the basis of: 

   Supporting a person who either holds, or is applying for, a medical treatment visa for either medical treatment / consultation or donating an organ in Australia……Applicant will attend hospitals and health care facilities as [a] support person of MTVV holder receiving medical treatment for spinal injuries sustained in a motor bike accident.

4. The Tribunal is aware that a [Mr A] was the person who the applicant claimed was the person who holds or was applying for a medical treatment visa. The Tribunal notes that the applicant’s most recent claims are to the effect that she herself requires a medical visa for treatments in addition to the original claims of providing support to [Mr A].

   The decision record and reasons for refusal 

5. The delegate’s decision record indicates that the reasons for refusal of the visa application were as follows: 

   I have considered the applicant against the requirements of subclause 602.212(4) and I am not satisfied that the requirements are met for the following reason: the person that the applicant intends to support does not hold a medical treatment (subclass 602) visa.

   Clause 602.212 in Schedule 2 of the Migration Regulations is a criterion that must be satisfied. It states that the requirements in one of subclauses (2) to (8) must be met in order for a visa to be granted. The applicant indicated that they applied for a Medical Treatment (Support Person) visa on the basis that they would like to support a person who is seeking medical treatment in Australia. Therefore, I have considered the applicant against the requirements of subclause 602.212 (4) and I am not satisfied that the requirements are met for the following reasons;

   Subclause (4) is not met as the person who the applicant seeks to support does not hold a Medical Treatment visa. As 602.212 states that one of the requirements in subclauses (2) to (8) must be met, I have further considered the applicant against all subclauses. Subclause (2) is not met as the applicant does not seek to obtain medical treatment. Subclause (3) not met as the applicant does not seek to donate an organ for transplant in Australia. Subclause (5) is not met as the applicant is not a citizen of Papua New Guinea. Subclause (6) is not met as the applicant has not demonstrated that they are not fit to depart Australia. Subclause (7) is not met as the applicant has not demonstrated that they are suffering financial hardship.

   Subclause (8) is not met as the applicant has not demonstrated compelling personal reasons for the grant of the visa. The applicant does not meet any of the subclauses (2) to (8) as mentioned above and I find the applicant does not meet the requirements to be granted a visa. As clause 602.212 is not met by the applicant, I find the criteria for the grant of a Medical Treatment (Support Person) visa are not met by the applicant. Therefore, I refuse the application by the applicant for a Medical Treatment (Support Person) visa.

6. This matter is before the [presently constituted] Tribunal because of a Court order, being a ‘consent remittal’. On 13 April 2022 a separately constituted Tribunal had affirmed the decision of the delegate not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa. Upon appeal of that decision, consent orders were made in Melbourne [in] December 2022 before [a] Registrar. The orders indicated that the court noted that:

   The first respondent [The Minister] concedes that the second respondent (Tribunal) breached s 359A of the Migration Act 1958 (Cth) (the Act) in failing to put to the applicant for comment information provided to the Tribunal in connection with a separate application for review, regarding the medical treatment and finances of the individual the applicant was seeking a visa to provide support to (see Tribunal decision at [18]-[22]).

   The first respondent accepts this information regarding the medical treatment and finances of the individual the applicant was seeking a visa to provide support to was “information” relied on by the Tribunal as “the reason, or part of the reason, for affirming the decision under review” (see [18]-[22]): SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26. As it was not put to the applicant pursuant to s 359A, a breach of s 359A of the Act has occurred, amounting to jurisdictional error.

7. The presently constituted Tribunal for this review has not read any previous Tribunal decisions concerning either the review applicant or [Mr A]. This decision has been made entirely upon the evidence and information lodged to department and subsequently the Tribunal with respect to this application for review. This is to ensure that, as far as is possible, the present application is independently assessed entirely on its merits. With respect to the orders made on 14 December 2022, this decision is not founded upon any of the information relied upon by the previously constituted Tribunal to affirm the decision under review. Put succinctly, this information has not been relied upon in any sense to affirm this decision under review.

   Evidence and information lodged by the review applicant to the department at first instance

8. Upon review of the original departmental file the Tribunal has noted the following:

   a.the original application for a medical visa was lodged with the department on 29 April 2020; it was pursued on the basis that the review applicant was wishing to provide support to another person [Mr A];

   b.there is a ‘Pre-admission letter’ (undated) to the review applicant from ‘Dr [B]’s Team’. The nominated date for the procedure, being a Bilateral Breast Mastopexy’, was to be 9 March 2022 at [Hospital] in [Suburb] Perth. The Tribunal notes that this procedure is usually performed for the purpose of ‘lifting the breast(s) for women who have sagging breasts due to significant weight loss, pregnancy, or genetics’;

   c.receipt for payment of AUD $2,400.00 to [Cosmetic Surgery] in name of review applicant;

   d.Surgical fee estimate dated 4 October 2021 in name of review applicant;

   e.Undated medical certificate apparently signed by the proposed surgeon outlining the following:

   This letter certifies that [the applicant] is scheduled to undergo a medical procedure and is required to attend the following appointments. Please note this is the minimum amount of appointments, and that additional appointments may be required depending on the recovery trajectory.
   Date     Appointment    Type    Note
   9 March 2022 Surgery 2-3 Day hospital stay
   23 March 2022 Post operative appointment 30 - 45 minutes
   30 March 2022 Post operative appointment 30 - 45 minutes
   13 April 2022 Post operative appointment 30 - 45 minutes
   20 April 2022 Post operative appointment 30 - 45 minutes
   8 September 2022 6 Months Review with Surgeon 30 - 45 minutes

   f.A seemingly undated pathology request in preparation for the proposed surgery;

   g.A statutory declaration dated 24 January 2022 in which the review applicant outlined the circumstances behind her providing emotional and physical  support to her [now ex] partner [Mr A] and the circumstances for her wishing to seek a breast mastopexy procedure. She confirmed that she had booked surgery for 9 March 2022 and had paid a deposit. She confirmed that after surgery it is expected she will need at least two to three weeks off work to recover; she would require at least six weeks to resume normal activities following the procedure. She outlined the above mentioned follow up examinations;

   h.A letter from the review applicant’s migration agent to the previously constituted Tribunal dated 25 January 2022 in which it was confirmed that the review applicant satisfied the medical visa criteria ‘as either a person receiving medical treatment and as a person supporting another medical visa holder’.  The letter confirmed the fact of the surgery having taken place on 9 March 2022. It was confirmed that whilst the review applicant and [Mr A] no longer lived together and are not in a defacto relationship, the review applicant ‘continued to provide essential physical, logistical and emotional support to [Mr A]’. Further, it was contended that [Mr A] will likely require her support for as long as he remained in Australia and that her proposed surgery will not prevent her from supporting [Mr A]; and

   i.Medical certificate dated 23 March 2022 from the cosmetic surgeon confirming the surgery had gone ahead and that she would require regular follow up until at least 9 September 2022 at which there would be a determination made of any further required follow up.

9. The previously constituted Tribunal made its decision to affirm the application for review on 13 April 2022 – see AAT [case number].

   Documents or information lodged for the purposes of the current Tribunal review process 

10. The Tribunal notes from its electronic holdings that no fresh information or evidence in support of the application for review has been lodged since 23 March 2022, being the medical certificate from the surgeon. In other words, there is no evidence or information as to whether the review applicant has recovered from the surgery and whether she ever followed up with her surgeon as recommended. There is no information or evidence as to whether she has continued to provide any support to [Mr A] post March 2022 submissions from her then migration agent; at time of decision it is 17 months since the submission of supporting evidence.

11. Considering the paucity of current evidence and information, having decided it could not make a decision ‘on the papers’, on 6 July 2023 this Tribunal issued an invitation to the review applicant to attend a hearing utilising her nominated email address. The invitation was to facilitate the review applicant to attend a hearing ‘in person’ on 10 August 2023 at 10:00 am to give evidence and present arguments relating to issues arising in her case. The attachments to the invitation requested that the review applicant ‘please use the response to hearing invitation form attached to this letter or attach additional information if you have any requests or any new information you wish us to consider.  The attachments also indicated to the review applicant that she should provide all documents she intended to rely on to support her case by 3 August 2023, ten days prior to the scheduled hearing. Further, the attachment indicated that if the review applicant had any documents she wished to rely on to support her case, that she give them electronically at least seven days before the hearing. Nothing was forthcoming.

12. On Wednesday 2^nd August 2023 the Tribunal received an email with an attached ‘response to hearing invitation’ from the same email address nominated by the review applicant. The correspondence confirmed that she would not take part in the scheduled hearing and that she consented to the Tribunal making its decision on the papers without taking any further steps for her to appear. It confirmed that her prior representative would also not be participating. The response confirmed that the review applicant did not intend to rely on any documents at the hearing, including written witness statements, written submissions, country information or other evidence.

    The Tribunal seeks clarification and confirmation from the review applicant on 2 August 2023

13. Considering the hearing response, the presiding member instructed staff to write to the review applicant upon her nominated email address as follows:

    Dear Ms [Applicant], I am writing in relation to an application for review by the Migration and Refugee Division of the AAT. I refer to your correspondence of today's date requesting a decision be made on the papers in this matter. The presiding Member acknowledges your correspondence, but wishes to raise the following for your consideration. The Member has noted that no ‘new’ documentary evidence or information has been lodged with the Tribunal since March 2022. It is important to note that the Tribunal will assess the evidence as at ‘time of decision’, not at time of the original application or decision of the originally constituted Tribunal.

    In other words, the presently constituted Tribunal must consider the state of the evidence currently, not in March 2022 or earlier. In light of this, it is requested that that you confirm your position in relation to the above as soon as possible and by close of business on Friday 4 August 2023. Should you wish to proceed with the presently constituted hearing on 10 August
    2023 this will be accommodated by the Member. If you have any questions, please contact us immediately at [email protected], or call 1800 228 333.

14. The intended purpose for advising the review applicant in this manner was to advise her that, whilst the Tribunal would consider all documents and information lodged thus far, it must make its assessments on the evidence as at time of its decision, not back in time to when she declared her statutory declaration and following surgery. There was no information or evidence as to her progress from this surgery after 23 March 2022. It is not known if the review applicant had any post-surgery complications or if she did follow through with consultations with her surgeon.  It is not known if she continues to provide support to [Mr A].

15. On 4 August 2023 a further email was received from the review applicant’s nominated email address advising that ‘I understand that a decision will be made on the basis of information on hands, I do not wish to provide further documents at this stage. Kind regards, [the applicant]’

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The Subclass 602 Medical Treatment visa is for persons seeking to, in the review applicant’s case, remain in Australia temporarily for medical treatment or related purposes.

    Is the visit for medical or related purposes?

18. Clause 602.211 requires that the visa applicant seeks to remain in Australia temporarily, for the purposes of medical treatment or for related purposes.

19. The Tribunal has been advised that this assessment should be made on a subjective basis, not objectively. For this reason, the Tribunal finds that, subjectively assessed, the requirements of cl 602.211 are met at time of decision.

    Are the medical treatment requirements met?

20. 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 – at time of decision no evidence or information has been provided upon which the Tribunal can reasonably find this to be satisfied;

    ·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia – not relevant;

    ·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community - at time of decision no evidence or information has been provided upon which the Tribunal can reasonably find this to be satisfied;

    ·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded – at time of decision no evidence or information has been provided upon which the Tribunal can reasonably find this to be satisfied;

    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 – at time of decision no evidence or information has been provided upon which the Tribunal can reasonably find this to be satisfied

21. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

22. Given the above findings, the requirements in cl 602.212(2) are not met.

    Is the applicant unfit to depart Australia?

23. 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(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant:

    ·is in Australia – satisfied at time of decision;

    ·has turned 50 – she is aged [Age] at time of decision. Not satisfied;

    ·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 – at time of decision no evidence or information has been provided upon which the Tribunal can reasonably find this to be satisfied;

    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 - at time of decision no evidence or information has been provided upon which the Tribunal can reasonably find this to be satisfied;

24. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

25. Given the above findings, the requirements in cl 602.212(6) are not met at time of decision. The review applicant is not unfit to depart Australia.

Will the visa grant result in no disadvantage?

1. Clause 602.214 requires that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted. 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.

1. As explained above, the review applicant is not unfit to depart Australia. The requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.214 do apply.

2. There has been no evidence or information put to the presently constituted Tribunal to identify any current medical condition being suffered by the review applicant. As such, no clear findings can be made as to whether any Australian citizen / permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted, it being the case the Tribunal can not make a finding as to the review applicant requiring medical treatment or consultations at time of decision.

3. Given the above findings, cl 602.214 is not met.

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

4. 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). She is not medically unfit to depart Australia.

5. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

6. In the present case, the visa applicant has claimed to be seeking the visa for the purposes of medical treatment and consultation for herself and to support [Mr A]. Subjectively assessed [see above] these are purposes for which a medical treatment visa can be granted.

7. In light of the review applicant having not engaged in any meaningful sense with the current review process, there is no evidence or information before the Tribunal to support a reasonable finding that at time of decision the review applicant is presently suffering any medical condition in Australia for which she requires medical treatment or related purposes. The Tribunal accepts that some point prior to March 2022 she was providing support to [Mr A]; it also accepts that up to and around March 2022 she was preparing for and underwent breast related surgery. There is nothing before the Tribunal upon which it can reasonably find she presently requires treatments or consultations.

8. In light of the review applicant having declined the opportunity to provide evidence and arguments at a hearing having been invited, and providing no submissions, the Tribunal considers that the only reasonable inference open to it is that the review applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl 602.215(1)(a) to (c). More succinctly, it would likely be a condition that there be ‘no further stay’ [see condition 8101]; based upon the current materials before the Tribunal, the Tribunal has major concerns that she would not depart Australia as required.  Given the above findings, cl 602.215 is not met at time of decision.

9. 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

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

   Michael Judd
   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).