Abd Aziz (Migration)

Abd Aziz (Migration) [2021] AATA 2965 (25 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Naseem Khan Abd Aziz
CASE NUMBER:  1905024
HOME AFFAIRS REFERENCE:               BCC2019/387332
MEMBER:Rosa Gagliardi
DATE:25 June 2021
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) Medical Treatment (Support Person) visa (subclass 602).

Statement made on 25 June 2021 at 3:01pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant is a minor – Tribunal affirmed applicant’s father’s Medical Treatment visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 602.212

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 Home Affairs on 13 February 2019 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) Medical Treatment (Support Person) visa Subclass 602, under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 February 2019. 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).
The delegate refused to grant the applicant the visa because the applicant did not meet the criteria under cl.602.212.
The applicant is 7 years of age and the Tribunal did not consider it appropriate for him to give evidence even though he attended the hearing. The Tribunal received evidence, however, from the applicant’s father, Mr Abd Aziz Che Awang, who has applied for a Medical Treatment visa as the main person in the family requiring treatment. The Tribunal also took evidence from the applicant’s older brother Mr Azlee Hafiz Abd Aziz and their sister, Aleysha, in the context of their father’s review. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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 is the support person of his father, or someone else who has a Medical Treatment visa or whether the applicant himself requires a Medical Treatment visa.
This decision should be read in conjunction with Decision: 1905011 in respect of the main applicant, Mr Abd Aziz Che Awang, the applicant’s father. When the application was lodged the applicant would have been 5 years of age and a minor. The applicant’s intentions and his motivations regarding the Medical Treatment visa (Visitor) and (Support Person) visa were largely guided by his father’s intentions.
The migration agent in this case has provided a submission outlining that Ministerial Intervention may be appropriate given, among other things, the support held by the applicant’s father in the Griffith community, and the Tribunal is making that submission available to the Department to assess whether the applicant, his father and his other two siblings meet the relevant guidelines to engage Ministerial Intervention.
The requirements of clause 602.212 are set out below:
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 not 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).
To meet clause 602.212 of Schedule 2 of the Migration Regulations the applicant must meet the requirements in one of the subclauses (2) to (8).
FINDINGS
Subclause (2) Medical treatment
At hearing the applicant’s father asserted that the applicant suffered from asthma. There is limited evidence, however, to suggest that the applicant seeks to obtain medical treatment or that arrangements have been concluded to carry out such treatment. As such, the applicant cannot meet subclause (2).
Subclause (3) Organ donor
The applicant has not provided evidence that he seeks to donate an organ for transplant in Australia. There is limited evidence before the Tribunal that this is the case. As such, the applicant cannot meet subclause (3).
Subclause (4) Support person
The person with the claimed medical condition which the applicant seeks to support is the applicant’s father. On 25 June 2021, 9.00am EST, the Tribunal affirmed the Departmental refusal of the applicant’s father’s (Mr Abd Aziz Che Awang’s) application for a Medical Treatment visa. As the person the applicant seeks to support does not hold a Medical Treatment visa, the applicant does not meet subclause (4). The Tribunal does not have any evidence that any other person requires support.
Subclause (5) Western Province of Papua New Guinea
The applicant is not claiming that he is a citizen of Papua New Guinea. Nor does the applicant reside in the Western Province of Papua New Guinea. The Tribunal also has no evidence before it that 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 of Queensland.
As such, the applicant does not meet subclause (5).
Subclause (6) Unfit to depart
While the applicant is in Australia, he has not turned 50 as he is 7 years of age, being born on 2 April 2014. The applicant has not applied for a permanent visa in Australia for which the applicant appears to meet all the criteria other than the public interest criteria related to health. The applicant has had no such visa refused. Nor does the Tribunal have evidence before it that 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.
The applicant therefore does not meet the requirements of subclause (6).
Subclause (7) Financial hardship
The applicant is dependent on his father’s support, including that of the community of Griffith and little evidence has been submitted that the applicant has compelling personal reasons to work in Australia. While the applicant and his family are having financial difficulties, these are solely as a result of the fact that the applicant’s father continues to want to remain in Australia and has exhausted his resources through unsuccessful litigation and the cost of living. Furthermore, the applicant is not the holder of a subclass 602 visa; or a subclass 675 (Medical Treatment (Short Stay)) visa; or a subclass 685 (Medical Treatment (Long Stay)) visa. The Tribunal does not have information before it that the applicant or a member of his immediate family, is likely to become a charge of the Commonwealth, a State, or Territory or a public authority in Australia.
Consequently, the applicant does not meet subclause (7).
Subclause 8 – compelling personal reasons
While this matter will be considered for Ministerial Intervention, the guidelines for such consideration are independent of the Tribunal’s assessment of “compelling personal reasons for the grant of the visa”. The Tribunal appreciates that the applicant’s opportunities for education, work and to achieve a higher standard of living in Australia might be greater than those the applicant would face in Malaysia. Of themselves the Tribunal is not satisfied that such reasons constitute “compelling personal reasons” as many applicants would prefer to live in Australia than less developed economies. The Tribunal also accepts that the applicant is without a mother but it’s not clear to the Tribunal that another relative or person could not take on that role.
The Tribunal is not satisfied that subclause 8 is met.
After having assessed the evidence before it, and 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.
Postscript: These findings do not preclude the Department assessing whether the applicant meets the guidelines for Ministerial Intervention and should be considered in light of the information put forward to support the applicant’s father’s request.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) Medical Treatment (Support Person) visa (subclass 602).
Rosa Gagliardi
Member

[2021] AATA 2965

25 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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