Dela Cruz (Migration)

Dela Cruz (Migration) [2019] AATA 2135 (6 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Ashly Dela Cruz
CASE NUMBER:  1709116
DIBP REFERENCE(S):  BCC2017/1216180
MEMBER:Mark O'Loughlin
DATE:6 May 2019
PLACE OF DECISION:  Adelaide
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.602.215 of Schedule 2 to the Regulations; and

Statement made on 06 May 2019 at 5:29pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – stroke – second Medical Treatment visa application – genuine temporary entrant – long term monitoring – plan for specific medical treatment – postponement request granted – further surgery required – angiogram required – period of time in Australia – financial situation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215

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 7 April 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 29 March 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 found that the applicant and her family do not satisfy the requirements in cl.602.215 of Schedule 2 to the Migration Regulations.
The applicant and her family appeared before the Tribunal on 15 November 2018 and again on 17 December 2018. The Tribunal received oral evidence and submissions from the applicant’s father Ulysses and her mother Aleli Dela Cruz .
The applicant further provided updated medical information to the Tribunal including, most recently, a notification of arrangements for an angiogram of her head, to be undertaken at the request of her neurologist on 5 June 2019.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
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 and her family genuinely intend to stay temporarily in Australia for the purpose of Ashly’s medical treatment.
Is the stay for medical or related purposes?
Clause 602.215 relevantly requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The applicant’s parents and her elder brother, Arwyn, arrived in Australia in September 2010. The family came to Australia on student visas as Ashly’s father, Ulysses, was studying marketing.
Ashly was born on 03/12/2011 in Australia.
On 03/10/2012, two months before the student visas expired, the family were granted Temporary Work Visas for stay until 03/10/2016.
Mr Ulysses Dela Cruz gave evidence, which the Tribunal accepts, that the family visited the Philippines for 2 weeks in 2013 to assess the desirability of returning
Neither his wife’s family nor his own had approved when they were married, and they found that despite the time spent in Australia the mood of the families had not softened. They returned to Australia.
On 29/09/2016 the applicant and her family applied for a Medical Treatment Visa which was granted on 24/01/2017 and was valid to 03/04/2017.
The Medical Treatment Visa was granted because Ashly had suffered a stroke on 9 September 2015. It appeared that Ashly may have had more than one stroke and it was suspected that she had a condition known as “Moyamoya disease” or “Moyamoya syndrome”.
On 29 March 2017 the applicant made the subject application for a further Medical Treatment Visa. At that stage the medical evidence suggested that Ashly only needed occupational therapy reviews and monitoring by members of the Women’s and Children’s Hospital Department of Neurology.
The delegate of the department found that at the time of the delegate’s decision on 7 April 2017 the applicant had not provided medical evidence to confirm that the applicant needed to continue to reside in Australia for such treatment and monitoring.
The applicant sought review of that decision at this Tribunal but before the matter was listed for hearing the applicant was found to require neurosurgery and so the listing was delayed to accommodate that.
When the matter first came before the Tribunal on 15 November 2018 it appeared that the applicant had enjoyed a good result from the surgery and was well on the way to recovery.
Mr Ulysses Dela Cruz and Mrs Aleli Dela Cruz gave evidence about their general situation.
They said that they had assets in the Philippines including a rice mill and that Mrs Dela Cruz’ family has rental properties and a car- hire business.
They said that they had been living with Mrs Dela Cruz’ sister in Adelaide but that she had returned to the Philippines in March 2018.
The family support that had been given to Mrs Dela Cruz’ sister, totalling about $40,000.00 per year was redirected to the applicant and her family.
The applicant’s parents also said that after paying for health insurance and because Mr Dela Cruz does not have working rights, money is very tight and so they get some support from their church as well.
The Tribunal accepts the evidence given by Mr and Mrs Dela Cruz about the family’s financial situation.
The Tribunal asked Mr and Mrs Dela Cruz about their intentions in relation to returning to the Philippines.
They said that Ashly’s illness had resulted in a thawing of relations between them and the families in the Philippines. The Tribunal accepts this evidence.
By November 2018 she appeared to be in much better health although she required a further scan and yearly monitoring. No time limit was placed on the length of time that Ashly would need to be monitored.
At that hearing on 15 November 2018 the Tribunal advised the family that the Medical Treatment Visa was not intended to allow parties to remain in Australia indefinitely to accommodate long term monitoring and that without a plan for specific medical treatment with a likely finishing date the application was unlikely to succeed.
The applicants conceded that there was no such plan for treatment but advised that they were to have a review of Ashly’s condition with the neurosurgeon, Dr Abou-Hampden, in early December 2018. They said that they hoped that Ashly would be cleared and that they could return to the Philippines where she could be monitored by local health providers.
On that basis the Tribunal agreed to adjourn the hearing until the 17^th of December 2018 to enable the applicants to obtain Dr Abou-Hampden’s views.
When the matter came back for hearing, the applicants provided a copy of an email from Dr Abou-Hampden advising that Ashly needs more surgery.
The email says that Ashly is still at risk of stroke and needs surgery in the next 1-2 months. It is dated 9 December 2018 and so it contemplates surgery by early February 2019 at the latest.
The applicant has now, through her father, provided the Tribunal with evidence that the surgery took place in January 2019 but that the applicant requires an angiogram of her head to ensure that it was successful.
That angiogram has been booked for Wednesday 5 June at 11.00 am.
The Tribunal notes that the applicant’s family have been resident in Australia for a lengthy period but accepts their evidence that they intend to leave when the outcome of the most recent surgery is confirmed. In this regard the Tribunal notes that no member of the family has working rights and that they are forced to live much more frugally than they would in the Philippines.
The Tribunal finds that there is no evidence of substantial failure to comply with visa requirements in the past.
The Tribunal finds that there is nothing to suggest that the applicant and her family will not comply with any conditions that would attach to the visa. Accordingly the Tribunal accepts that the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject. The Tribunal notes that the most important condition will be the mandatory no work condition which the applicant and her family have already been abiding by. The other likely condition, the bar on study for more than 3 months, is not likely to be applied to the applicant or her brother as they are under 18 years old and are thus generally an exception to that condition.
There are no other relevant matters to which the Tribunal has had regard.
Having had regard to the applicant’s compliance with visa conditions to date, intention to comply with conditions to which the 602 visa would be subject, and other relevant matters, the Tribunal is satisfied on the evidence before it that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Given the above findings, the requirements in cl.602.215 are met.
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.602.215 of Schedule 2 to the Regulations.
Mark O'Loughlin
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).

[2019] AATA 2135

6 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Jurisdiction