Del Piano (Migration)

[2022] AATA 1772

Del Piano (Migration) [2022] AATA 1772 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sara Del Piano

REPRESENTATIVE:  Mrs Rachael Gunderson (MARN: 0901595)

CASE NUMBER:  2011444

HOME AFFAIRS REFERENCE:               BCC2020/1453250

MEMBER:Rosa Gagliardi

DATE:13 April 2022

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 13 April 2022 at 2:48pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – arrangements for treatment concluded – Bilateral Breast Mastopexy – post-operative consultations – support person – provide support to former de-facto partner – physiotherapy and other remedial work – decision under review affirmed

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

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).

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 delegate refused to grant the applicant the visa because he/she was not satisfied that the applicant met the requirements for cl.602.212.

4. The applicant appeared before the Tribunal on 1 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from her former partner,

   
   

   Mr Abdulla Kaja, who is seeking a Medical Treatment visa in his own right, and whom it is claimed the applicant wishes to remain in Australia to support, while obtaining medical treatment herself.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Are the medical treatment requirements met?

8. 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

   ·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia

   ·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community

   ·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, 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.

9. In particular the applicant seeks to meet cl.602.212(2) and cl.602.212(4). 

   cl.602.212(2) 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.

10. From the medical evidence before it, it appears that the applicant underwent a medical procedure being, Bilateral Breast Mastopexy; a procedure that lifts and restores shape and volume to both breasts.  The Tribunal accepts that the Medical Treatment visa may be used for such purposes.  Medical evidence demonstrates that the applicant has undergone surgery on 9 March 2022.

11. Having regard to cl.602.212(2) the Tribunal notes that the applicant has paid for her surgery and that the actual surgery is now complete.  The applicant is seeking to remain in Australia to undertake post-operative consultations with her surgeon. Her surgeon has recommended the following appointments, although this is a minimum as “additional appointments may be required depending on the recovery” and in cases where patients experience complications:

    23 March 2022

    
    

    30 March 2022

    
    

    13 April 2022

    
    

    20 April 2022

    
    

    8 September 2022 6 months review with surgeon. 

12. At the time of writing this decision, the applicant will have been able to avail herself of 3 of the above post-operative consultations.  By the time the applicant is required to depart Australia she will have had the opportunity to also attend the 4^th appointment.  The applicant, therefore, seeks the visa for a consultation at the 6 months’ review point.  Given this visa was applied for on 29 April 2020 (almost two years ago now), the Tribunal is unclear why the applicant waited to have the surgery at the time of review and did not lodge an independent application to undergo surgery earlier.  The Tribunal has concerns that the applicant wishes to use the visa to continue to remain in Australia. 

13. Further, the Tribunal does not have before it medical evidence that the applicant has developed complications as a result of her surgery which require medical attention in Australia.  While the applicant may have a personal preference to continue to want to see the same surgeon for the sake of continuity, the Tribunal is unable to discern why the applicant could not have a 6 months’ review in her home country, given the surgery has been completed and there is no indication that further surgery is required.

14. On the basis of the evidence, the Tribunal is not convinced that the applicant has a medical condition which requires attention in Australia at the time of writing this decision and therefore finds that cl.602.212(2) is not met.

    cl.602.212(4) Support person
        (2)  All of the following requirements are met:

    (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.

15. The applicant claims that she needs the visa to also provide support to her former de-facto partner with whom she is no longer living, Mr Abdulla Kaja.  It has been argued that despite this change in their relationship status the applicant “continues to provide essential physical, logistical and emotional support to Mr Kaja”. 

16. On 12 April 2022 the Tribunal made a decision in Mr Kaja’s case (Decision no: 2011442) and found that Mr Kaja met the requirements for cl.602.216 of Schedule 2 because he had demonstrated adequate means or access to adequate means to support himself in Australia during treatment. It is unknown whether Mr Kaja will meet all the requirements for the grant of the visa. Notwithstanding, for the purposes of this review, the Tribunal will presume that Mr Kaja will obtain a subclass 602 visa.

17. In making a decision in this matter, the Tribunal accepts that two parties do not need to be in a spouse-like relationship or to live together to provide one another with support during medical treatment, although the incentive and obligation to do so might be diminished, but the Tribunal recognises this is not always the case.

18. The Tribunal does not suggest that the applicant has no intention of providing Mr Kaja with some support, nonetheless, the Tribunal considers that in determining whether the applicant will provide support, it is relevant to scope the extent of support required by Mr Kaja if his surgery goes ahead.  In its decision the Tribunal noted that Mr Kaja may (as yet unclear) have further surgery after an accident in November 2018 in which he sustained serious injuries.  Mr Kaja has spent his time in Australia having those injuries addressed.  He has been conducting physiotherapy and other remedial work to bring him to a point where the significant issues that can be remedied have been addressed.  The Tribunal accepts that the applicant as part of her role as de-facto partner to Mr Kaja was invaluable as a support person in the immediate aftermath of the accident as well as during his intensive recovery period.  The Tribunal is not satisfied, however, that such support continues to be needed by Mr Kaja, however.

19. The Tribunal considers it appropriate to reproduce some of its reasoning in that decision:

    From the medical evidence submitted it appears that much of the major surgery has taken place and that there remain some continuing problems such as pelvic tilt and coronal sacral tilt.  The sports physiotherapist managing the applicant’s remedial care, stated in a letter dated 8 April 2022, among other things, “Mr Kaja has been on a very extensive yet fulfilling rehabilitation pathway up until this day.  At this point in time, our rehabilitation continues to improve with goals continually being developed however, some of his injuries and furthermore, limitations may exceed the ability of physiotherapy to completely counteract…Further from this, Mr Kaja has had recent discussions with Dr Baddour (Spinal surgeon) who advised him that there is the potential to have further surgery to now remove some of the hardware in his spine.  Such hardware continues to limit certain movements, required for everyday tasks.  As a result of this, there is a good chance that Mr Kaja may be able to further his rehabilitation progress and outcomes as well as having the potential to correct a small amount of the scoliosis noted above if such surgical intervention was to be considered.  The decision is not yet finalised, but that option is at least available from what has been discussed in conversation”. 

    The Tribunal is prepared to accept that the applicant would benefit from surgery to remove hardware in his spine.  The spinal surgeon has also provided a letter dated 9 March 2022,  stating that the applicant had been training in the gym really hard, and “He is now using a heel raise on the right hand side of 13 mmm, which he feels has corrected his alignment.  He is aware of a scoliosis.  He has a coronal shift to the right hand side.  He presents asking if anything could be done to improve this.  It seems likely it is mainly a cosmetic issue.  He had EOS films last year.  His lumbar fixation remains intact.  His previous sacral fixation has been removed.  A slight coronal shift is apparent.  I will arrange for a CT scan of his lumbar spine to see how much healing has taken place with respect of his L3 vertebral body.  It might be possible to remove some of his peripheral implants and restore some movement and possibly alignment”.

20. While no doubt the surgery will take a toll on Mr Kaja (if it indeed goes ahead and the Tribunal has no definitive evidence of this), the Tribunal has limited medical evidence before it that the applicant will not be able to manage without a support person during and after surgery.  As noted in Mr Kaja’s decision, he has been compensated for his injuries and is financially placed to purchase transport as well as any other assistance that can be obtained within the community to enhance his quality of life.  Once the removal of the peripheral implants occurs, if it is to do so, and there is a recovery period, the Tribunal has limited medical evidence before it that Mr Kaja would not be in a position to cope, leading the Tribunal to have further concerns the visa may be being used to maintain ongoing residence in Australia. 

21. From the medical evidence it would appear that Mr Kaja had a life changing experience and that he may well live with the consequences of his accident into the long-term.  Given he and the applicant are no longer in a relationship and do not live together, the Tribunal queries the proposition that the applicant can continue to provide support, emotional and physical, to Mr Kaja indefinitely.

22. In Mr Kaja’s decision the Tribunal also noted that as well as having access to significant funds, Mr Kaja is involved in a Family Trust Fund and at hearing seemed keen to resume working again once his issues with the implants are resolved.

23. The applicant is not seeking to have an organ transplant, is not a citizen of Papua New Guinea or a resident of Western Province of Papua New, has not provided evidence that she is unfit to depart Australia or that she is experiencing financial hardship, or that there are compelling reasons for the grant of the visa.  The circumstances of the applicant herself in terms of her 6 months’ medical review and Mr Kaja’s support needs, do not convince the Tribunal that there are compelling reasons for the grant of the visa.

    Conclusion

24. 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

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

    Rosa Gagliardi
    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).