Cama (Migration)

[2021] AATA 741

Cama (Migration) [2021] AATA 741 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jotivini Rokocoa Ralolokula Cama

CASE NUMBER:  1901786

HOME AFFAIRS REFERENCE(S):          BCC2018/5799916

MEMBER:Angela Cranston

DATE:17 March 2021

PLACE OF DECISION:  Sydney

DECISION:Noting that the Tribunal has made findings that the applicant meets cl. 602.212(2)(a) and (b), the Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.215 of Schedule 2 to the Regulations

Statement made on 17 March 2021 at 3:02pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – previous application for permanent visa refused – medical treatment and six-monthly reviews for five years – family ties to home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(2)(a), (b), 602.215

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 7 January 2019 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (the Act).

2.    The applicant last arrived in Australia on 25 October 2015 on a tourist visa and remained. She was granted a bridging visa A on 3 December 2015. She applied for the medical treatment visa on 21 December 2018.

3. 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).

4.    In her medical treatment visa application, the applicant stated that she was seeking to remain in Australia from 28 December 2018 to 28 March 2018. She also provided a form 1507 stating her medical treatment was for cervical spondylosis and thyroid cancer and that she was seeking spinal surgeon review, analgesia, head and neck surgeon review from Dr Quoc Dung Lam. Also provided was the following letter from Dr Quoc  Dung Lam dated 12/12/2018:

This is to certify that Jotivini has recently had thyroid surgery for early thyroid cancer. She will need to continue to follow up with her surgeon.

She has recently had right arm numbness associated with severe degenerative cervical spine disease for which she is awaiting to see specialist spine surgeon.

She requires ongoing medical supervision, follow up, and likely further treatment in Australia. Unfortunately, Fiji will not have the necessary services to effectively treat her medical conditions.

5.    The delegate refused to grant the applicant the visa for the following reasons:

On 21 December 2018, the applicant lodged an application for a medical treatment visa. It is stated that the applicant would like to remain in Australia until 28 March 2019 (sic) to seek medical treatment for neck surgeon and surgical oncologist. A form 1507 has been provided in support of the application and confirms the the applicant is seeking medical treatment in Australia.

The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state they must remain in Australia for ongoing consultation. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.

In the medical treatment visa application, the applicant has not provided enough documentation to demonstrate their intention or incentive to depart Australia now or in the near future. Departmental records confirm that they have unsuccessfully applied for a permanent visa onshore and have taken every opportunity to present their case or circumstances for review. I find that their adverse migration history strongly indicates that they intend to continue to seek a visa pathway to remain in Australia on a permanent basis.

At the time of decision, the applicant has not presented any personally compelling or exceptional circumstances to warrant departure from the legislative requirement of the genuine visit criterion, which is mandatory for the grant of a medical treatment visa.

I have considered the claims and supporting evidence that they have provided with their application. On balance, I find that they are attempting to utilise the medical treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

6.    The applicant applied for review. Prior to the Tribunal hearing, the Tribunal received the following letter from Dr Christian M Girgis dated 29 January 2021:

This letter is to confirm that Mrs Jotivine Cama is a patient of mine whom I treat for thyroid carcinoma. She was diagnosed in 2018 with follicular thyroid carcinoma had two surgeries, one in December 2018 and the next in 2019 and a dose of radioactive iodide in May 2019. Whilst her cancer has been stable and she has been well, she does need to have regular clinical reviews, annual ultrasounds and regular blood tests to ensure she is on the right dose of medication and there is no risk of recurrence in her thyroid cancer. This condition has had a significant impact on her quality of life and well-being and requires regular and periodical review. She will be reviewed on a six monthly basis over the next five years, costs of her monitoring including ultrasounds and blood tests as well as clinical reviews is estimated to be around $800 on the annual basis (this is an estimate). This specialised monitoring of her condition is not available in Fiji and in my opinion, she should remain in Australia for ongoing monitoring of her condition.

I expect to see her on a regular six monthly basis for at least the next five years and thereafter on a less frequent annual basis on an ongoing indefinite basis. If further information is required regarding her condition I would be happy to provide this information.

7.    The Tribunal also received the following statutory declaration from the applicant:

…

I have been undergoing medical treatment for thyroid cancer and cervical spondylosis since 2018.

On 20 May 2019 I was admitted to radioactive lodine therapy. A copy of edischarge dated 23 May 2019 and a letter Dr Rabbia Haider dated 3 April 2019 is annexed and marked as annexure M.

I am required to undertake regular clinical reviews, regular blood tests and annual ultrasounds in order to best manage my treatments and medications to ensure that there is no risk of recurrence in my thyroid cancer. This condition has had a significant impact on my quality of life and well-being and requires regular and periodical review. It is suggested that I undertake clinical review on a regular six-monthly basis for at least the next five years. A letter from Dr Christian M Girgis dated 18 December 2020 is annexed and marked as annexure N.

Overall, I am so pleased that I have been able to be treated in Australia as this medical treatment is difficult to access in Fiji.

In respect to how I am coping, I generally feel unwell when I have medication. I cannot cook or prepare meals and I cannot do the grocery shopping without assistance. In addition, due to right arm numbness, I cannot carry heavy objects and require assistance to have a shower.

I am taking two medications: Colecalciferol (1 Ostelin vitamin D 25 mcg oral capsule per day) and Levothyroxine sodium (1 Lebothyronxine sodium 100 mcg oral tablet per day). Ostelin vitamin D vitamin D for 300 capsules cost $27.99 and Levothyroxine sodium for 200 tablets costs $33. If Dr Christian M Girgis does not change the dose of medication, the estimated costs for two medication for the next five years are $472. (Annexure O).

I have a private health insurance from Bupa to cover my medical costs (annexure P)

I have $10,696.30 savings in my ANZ account.

I am unaware of the availability of the treatment in Fiji.

Personal ties to my home country, Fiji

My three daughters, Narieta Turagaiviu, Paulina Cama and Alumita Vosawale all live in Fiji.

My husband and I own a 3 bedroom residential property at Matavolivoli in Nadi. My daughter Paulina is currently renovating the property, aiming for us to live and enjoy my retirement at home upon returning to Fiji. A copy of the land title deed and a letter provided by my daughter Paulina are annexed and marked as Annexure Q.

My eldest daughter Narieta works as a collections officer in Recoveries Corporation in Suva, Fiji and my son in law (Narieta’s husband) is a permanent police constable in Fiji Police Force. They own a property in Suva where they welcome us to live upon our return. A letter provided by my daughter Narieta dated 19 December 2020 is annexed and marked as Annexure R.

My sister, Akanisi Ralolokula Qoro and three brothers Ilaisa Ralolokula, Luke Ralolokula and Erineri Ralolokula all live in Fiji.

My five grandchildren, Frances Turagaiviu, Sitiveni Turagaiviul, Josephine Turgaiviu and Toma Kaylon Waqavono and Bulong Lawanie Vosawale all live in Fiji.

After I undertake my medical treatment, I plan to return to Fiji with my husband. My return to Fiji will enable me to live peacefully at our own property, enjoy time with my beloved daughters and for them to help look after me. I also very much look forward to spending as much time as possible with my grandchildren.    

I confirm that I will comply with any future visa conditions which are applied to me during the treatment and make arrangements to depart Australia following the completion of my treatment. I confirm I genuinely intend to stay in Australia temporarily.

8.    The applicant appeared before the Tribunal on 2 February 2021 to give evidence and present arguments.

9.    The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

1. The Tribunal discussed the Department’s decision. The Tribunal also put to her that it had read the medical advice which said she had undergone two serious medical surgeries and that she needed to be reviewed every six months for the next 5 years. The Tribunal asked about the period of time identified in her medical treatment visa application. She said in mid-2018 her throat was sore, she went to the doctor and thyroid sickness was discovered. When asked how long she initially wanted to stay, her adviser stated that it was initially for three months during the operative treatment which was September to December but since then and post operatively she had been advised she needed to be supervised for five years.

2. The Tribunal asked about when the six-monthly visits for the next five years commenced and the applicant stated from December, or as the adviser stated, 5 years post- operative which commenced December 2018 or until December 2023.

3. The Tribunal put to her that it could see that she was seeking medical treatment.

4. The adviser indicated the applicant and her husband wanted to return to Fiji after the applicant finished treatment.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

2. Since the applicant has not applied for a permanent visa in Australia that she appears to have met all the criteria for other than the health criteria, the applicant does not meet cause 602.212(6) and the issue in this case is does the applicant have a genuine intention to stay temporarily for the visa purpose?

3. 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).

4. The last substantive visa held by the applicant was a tourist visa. There is no evidence before the Tribunal that the applicant did not comply with her tourist visa or bridging visa conditions.

5. The Tribunal must consider whether the visa applicant intends to comply with the conditions to which the Subclass 602 visa would be subject (cl.602.215(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows:

   8101 – must not work in Australia

   8201 – must not engage in study or training in Australia for more than 3 months

6. Because departmental records confirmed that the applicant had unsuccessfully applied for a permanent visa onshore, the Department was not satisfied that the applicant did not seek to permanently remain in Australia. Neither was it satisfied that the applicant was gravely ill or receiving intensive care or critical care, nor that she must remain in Australia for ongoing consultation nor that the treatment was unavailable outside of Australia. However, given the medical evidence, the Tribunal accepts that the applicant was diagnosed in 2018 with follicular thyroid carcinoma, sought medical treatment, had two surgeries, one in December 2018 and again in 2019 and a dose of radioactive iodide in May 2019. The Tribunal also accepts she need six monthly review commencing December 2018 and for the following five years. The applicant also told the Tribunal that she has strong links to Fij and wishes to return there as soon as the treatment and rehabilitation are finished so that she can re-establish her life with her family there. The Tribunal accepts this is true. In addition, and noting that there is no evidence before it that the applicant did not comply with her tourist visa or bridging visa conditions, the Tribunal is satisfied the applicant intends to comply with her medical visa conditions.

7. In summary, while the applicant’s visa history in Australia raises concerns, on the evidence before it and for reasons above, the Tribunal is satisfied that the visa applicant understands that the medical treatment visa is temporary and that she has an obligation to leave at the end of the medical treatment. The Tribunal is also satisfied that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.602.215 are met.

602.212(2)(a) and (b)

1. On the basis of the evidence before it the Tribunal accepts that the applicant was diagnosed in 2018 with follicular thyroid carcinoma, has had two surgeries one in December 2018 and the next in 2019 and a dose of radioactive iodide in May 2019 and has needed six monthly review since December 2018 for the next five years. The Tribunal also accepts based on medical evidence that the applicant is engaged in on-going medical consultations. Given the medical evidence before it, the Tribunal also concludes that arrangements have been concluded to carry out the treatment.

2. The Tribunal is therefore satisfied the applicant meets cl.602.212(2)(a) and (b).

3. Given the findings above, the Tribunal finds that the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

DECISION

1. Noting that the Tribunal has made findings that the applicant meets cl. 602.212(2)(a) and (b), it remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

   ·cl 602.215 of Schedule 2 to the Regulations.

Angela Cranston
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).