CORREA GONZALEZ (Migration)

CORREA GONZALEZ (Migration) [2018] AATA 1591 (19 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jose Manuel CORREA GONZALEZ
CASE NUMBER:  1716618
DIBP REFERENCE(S):  BCC2017/2504913
MEMBER:Adrienne Millbank
DATE:19 April 2018
PLACE OF DECISION:  Brisbane
DECISION: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.602.212(2) of Schedule 2 to the Regulations; and
·cl.602.215 of Schedule 2 to the Regulations.

Statement made on 19 April 2018 at 2:09pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Whether the applicant genuinely intends to stay temporarily – Applicant suffering from terminal illness – Compelling compassionate circumstances – Limited life expectancy – Decision remitted with direction
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.215
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 July 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 July 2017. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The Delegate refused to grant the applicant the visa because the Delegate was not satisfied that the applicant was undergoing medical treatment. The Delegate did not accept on the evidence provided at the time of application that the applicant was continuing to receive medical treatment, or needed to stay in Australia for medical consultation and treatment. The Delegate further found that the applicant had not presented sufficiently compelling or exceptional circumstances to warrant departure from normal policy and legal requirements for the genuine visit criterion. For these reasons, the delegate found the applicant did not meet cl.602.215. The Delegate suggested that the applicant might explore options for a permanent visa.
The applicant appeared before the Tribunal on 6 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
At the hearing the applicant, through his representative, offered to obtain for the Tribunal a report from a Medical Officer of the Commonwealth, if that was required further to the form 1507 Evidence of intended medical treatment, and medical reports from the applicant’s treating medical practitioners and specialists. The Tribunal advised that it accepted the medical evidence provided, and that the issue that needed to be addressed was that of genuine intention to stay temporarily, as this was the criterion that was the basis of the decision under review.
Further evidence was provided to the Tribunal on 11 April 2018, following the hearing.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was born in Caracas, Venezuela, in 1949. He first arrived in Australia on 5 November 2015 on a Visitor visa. He travelled with his wife, for the purpose of visiting and spending time with their son, an Australian citizen settled in Queensland.
Evidence was provided, including in the form of reports in 2015 from the applicant’s treating doctors in Caracas, that he was diagnosed with emphysema in 2004, and with leukemia in 2006/2007. At hearing the applicant advised that by late 2015, with the deteriorating political and economic situation in Venezuela, he was unable to obtain the drugs he needed to manage his conditions. The applicant’s son, an Australian citizen settled in Queensland, advised that was difficult for him to obtain and get the drugs to his father in Venezuela, and that the family decided that the applicant should visit him in Australia, where he would be able to access the medication he needed.
Evidence was provided to the Tribunal that medicines and pharmaceuticals such as inhalers are in short supply or unaffordable in Venezuela. The Department of Foreign Affairs and Trade travel advisory for Venezuela, dated 23 February 2018, advises ‘basic medical supplies and pharmaceuticals are often in short supply’. A report from Amnesty International dated 9 March 2018 advises ‘People in Venezuela are fleeing an agonizing situation that has transformed treatable health conditions into matters of life and death. Basic health services have collapsed and finding essential medicine is a constant struggle, leaving thousands with no choice but to seek health care abroad’.
A National Public Radio Here and Now radio newscast on 1 February 2018 reported that Venezuelans have been forced to look for medicine on the black market, and that when they find such medicine, often smuggled into the country, it could be expired or unaffordable. This newscast reported that President Maduro had refused to accept humanitarian aid, blocking shipments of medicine and first aid supplies.
The applicant advised at hearing that doctors who treated him in Caracas have left the country.
The applicant’s representative in a written statement to the Tribunal stated that the applicant came to Australia with his wife with the hope that he would get better.
The Tribunal found the applicant and his son to be open, forthright and compelling witnesses at hearing, and accepted their testimonies and all the evidence they provided.
The applicant applied onshore for an extension of stay and on 15 June 2017 was granted another Visitor (subclass 600) visa to stay until 15 July 2017. On 13 July 2017 he lodged the application for the Medical Treatment (subclass 602) visa.
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issues in this case are whether the applicant genuinely is seeking to obtain medical treatment in Australia; and whether he genuinely intends to stay temporarily for the purpose for which the visa would be granted.
Is the applicant seeking medical treatment in Australia?
Clause 602.212(2) requires that: the applicant is seeking to obtain medical treatment (including consultation) in Australia; arrangements have been concluded to carry out the treatment; 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; 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; and the payment of those costs will not be a charge on the Commonwealth, a State, a Territory of a pubic authority in Australia.
Despite having access in Australia to the prescription and other medicines and pharmaceutical items he needed, evidence was provided that the applicant’s health has deteriorated. Several letters were provided from the applicant’s haematologist/oncologist (Dr Sorab Shavaksha from the Sunshine Coast Haematology and Oncology Clinic). In the most recent, signed on 20 March 2018, Dr Shavaksha wrote:
I look after (the applicant’s) chronic haematological malignancy. He has other severe co-morbidities including severe COPD requiring home oxygen, severe pulmonary hypertension and ongoing hypertension and hypercholesterolemia. He is currently taking a number of medications which are reviewed at each visit and each one is crucial to (the applicant’s) ongoing survival. His health remains delicately balanced and it would not take much to upset this balance making him critically unwell.
1.    I agree to treat (the applicant)
2.    Consultation fee of $180 approximately every 3 months
3.    Satisfactory arrangements have been made for the payment of all costs associated with treatment
4.    The treatment is tablets and blood test monitoring
5.    He will be under medical care indefinitely in Australia
6.    No Australian citizen or permanent resident will be disadvantaged by me treating (the applicant)
7.    He is unfit to travel.
From the further medical evidence and the testimony provided at hearing, the Tribunal takes point 5 above to mean that the applicant’s condition is terminal; that he is receiving palliative care; and that he will not recover sufficiently to return to Venezuela.
Several letters were provided by Dr Michael Blint (Provider no. 04974711), the applicant’s Thoracic Physician, based at Cotton Tree, Queensland. In the most recent, signed on 7 November 2017, he wrote:
This is to certify that I have seen (the applicant). He has problems of:
1.    Severe emphysema
2.    Severe hypercapnic respiratory failure
3.    Severe cor pulmonale with decompensated right heart failure.
He is oxygen dependent and has frequent exacerbations. He would be unable to fly without supplemental oxygen and I would advise him against flying in view of the substantial risks. There is no likelihood that he will improve and his condition is likely to be progressive.
In a form 1507 statement, signed by Dr Raouf George (registration number 249787LK), from Sunshine Coast Haematology and Oncology Clinic on 21 March 2018, the medical condition of the applicant requiring treatment is stated as ‘COPD – Chronic obstructive lung disease’, and the treatment as ‘oxygen concentration, regular medication, inhalers, puffers’.
Evidence was provided that the applicant and his wife, who is in the country on a Visitor visa, have health insurance, namely, BUPA Gold Visitors Cover with Excess. Evidence was provided also that the applicant is in receipt of a pension and at the time of decision had funds of around $74,000 in his personal bank account. As noted, the applicant and his wife are living with their Australian citizen son.
On the evidence before it the Tribunal is satisfied: that the applicant is seeking to obtain medical treatment (including consultation) in Australia; that arrangements have been concluded to carry out the treatment; that 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; that 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 he applicant; and that the payment of those costs will not be a charge on the Commonwealth, a state, a territory or a public authority in Australia.
Given the above findings, cl.602.212(2) is 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. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl.602.212(6).
The applicant is not in the situation of having applied for a permanent visa and meeting all of the criteria other than the public interest health criteria. Therefore, despite advice from his treating medical practitioners, which the Tribunal accepts, that he is medically unfit to depart, he cannot meet the requirements of cl.602.212(6).
At hearing, the applicant’s son described how two of his siblings, professionals in Venezuela, are in Australia on Student visas, with view to applying to remain permanently. He stated that family is important to the applicant and his children; that the family is close; and that his siblings have come in order to provide family support during the applicant’s illness. The parties’ representative advised that he had explored with the applicant options for permanent or longer-stay visas. He stated that if and when the applicant’s two temporary resident children obtain permanent residence, the balance of his family would be in Australia, and he would apply for a Parent visa. He stated that the long-stay medical visa was closed to applications.
The applicant stated that he has a home in Caracas, that is sitting vacant, and that he and his wife have family in Venezuela, including one of his children. He stated however that he is too ill to return; that he would not be able to survive in Venezuela; that he has no family in any other country apart from Australia; that he is dependent on his health providers in Australia and the medicines they are prescribing for him; and for his day-to-day functioning he is dependent on the support of his wife of 45 years, and his children here in Australia.
The Tribunal accepts on the evidence provided including the testimony at hearing, that the applicant and his wife arrived in Australia in 2015 with genuine intention to visit their son and family, and to improve the applicant’s health. The Tribunal accepts that the applicant and his wife still have significant ties to Venezuela including property ownership, and family ties.
The Tribunal is satisfied on the evidence provided that the medicines that the applicant needs to survive are not available or accessible to him in his home country. The Tribunal accepts that the applicant is unable to indicate when he might be able to depart Australia, because he is too ill to depart, and because his prognosis is such that it is not anticipated that he will improve.
The applicant is 69 years old and suffering from terminal illness. He was able to attend the hearing only with the assistance of his wife and his son. The Tribunal is satisfied that the applicant has no desire or capacity to seek employment, and that he has no intention of enrolling in a course of study longer than three months. At hearing the applicant confirmed, and the Tribunal accepts, that he has no intention of lodging a claim for a Protection visa. The Tribunal further accepts that the applicant has abided by and intends to abide by the conditions of his visas to enter and remain in this country, to the extent possible, given his illnesses.
As noted above, the Tribunal accepted the evidence provided, and found the applicant and his son to be credible and compelling witnesses. The Tribunal is satisfied that the applicant is not seeking a Medical Treatment (subclass 602) visa for the purpose of remaining in this country apart from to receive the medical treatment he needs to stay alive, and to spend his remaining time with his wife and son and other children in Australia.
The Tribunal notes the intention of the visa is for temporary entry for medical treatment and notes also the compelling and exceptional circumstances of the applicant. The Tribunal notes policy guidelines suggesting that, in compelling and exceptional circumstances such as the applicant’s, a fair and reasonable approach should be taken by decision-makers to the genuine visitor requirement. The Tribunal further notes that decision-makers are expected to sensitively take into account the ability of the applicant to travel and to depart Australia, as well as the applicant’s life expectancy.
In a written submission provided to the Tribunal on 11 April 2018, the applicant’s representative advised that the applicant is in the terminal stages of two serious medical conditions. As noted above, he was diagnosed with pulmonary emphysema in 2004/05, and with leukemia in 2006/07. He was advised at this time that he had a life expectancy of eight years. At hearing the applicant advised, regarding his life expectancy, that he has outlived it, and is living on borrowed time. The Tribunal accepts that the applicant is receiving palliative care in Australia, and that his life expectancy is such that his intended stay is temporary.
For the reasons above, having regard to the considerations set out in cl.602.215(1)(a) to (c), and having considered the evidence and circumstances of the applicant, the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Given the findings above, 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
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.602.212(2) of Schedule 2 to the Regulations
·cl.602.215 of Schedule 2 to the Regulations.
Adrienne Millbank
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).

[2018] AATA 1591

19 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction