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Eustasie (Migration)

Eustasie (Migration)

Case •

[2019] AATA 1521

•

29 April 2019

Eustasie (Migration) [2019] AATA 1521 (29 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Marie Sandra Eustasie
CASE NUMBER:  1721438
DIBP REFERENCE(S):  BCC2017/3032137
MEMBER:Rachel Westaway
DATE:29 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 29 April 2019 at 11:17pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – support person – husband has no medical illness requiring treatment – genuine pathway to permanent residency jeopardised by alleged errors of migration agent – avenue to seek Ministerial Intervention – 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 August 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 22 August 2017. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment)(Support Person). 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 evidence before them indicated that the applicant had sought the visa as a support person for her husband Mr Eustasie The delegate found that Mr Eustasie did not hold a Medical Treatment visa and as such Mrs Eustasie was unable to meet the criteria for a support person.
The applicant appeared before the Tribunal on 24 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr Eustasie, and a counsellor and support person for the applicant and her husband.
The hearing was combined with the approval of the applicant and her husband however the Tribunal has made separate decisions for each applicant. The application was made on the basis that Mr Eustasie required medical treatment and had applied for a subclass 602 Medical Treatment visa. The application which is the subject of this review relates to Mrs Eustasie on the basis that she is the support person for her husband. An additional application was also made for their child Master Eustasie as a support person.
For the following reasons, the Tribunal has decided that the decision under review for Mrs Eustasie, as support person for her husband 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 genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted.
Oral evidence provided at hearing and written submissions
The applicant and her husband confirmed at hearing that their Migration Agent had accidently missed the deadline for review of the application with the Tribunal for review of a subclass 187 visa. The applicant and her husband and witness stated that they thought this hearing may be combined with the review of the subclass 187 visa. The witness gave the case number to the Tribunal and the Tribunal confirmed that a decision was made on the previous matter noting it was considered out of jurisdiction due to the out of time submission. The Tribunal explained that the review would only address the subclass 602 visa refusal.
The applicant and her husband stated he was unaware of what he was applying for or why and that at the time they went to their agent’s office to sign many papers but it was stressful and they do not recall the detail.
The applicant’s husband also stated that that the agent had asked that he go to the doctor and obtained a medical certificate pertaining to stress. He confirmed he did this and the delegate’s decision pertaining to the applicant’s husband outlined he needed to be “put off work for 5 days”.
The Tribunal asked the applicant to confirm if the evidence on the Tribunal file was correct. The applicant confirmed that it was and her husband explained briefly about his subclass 187 application and his concerns about his migration agent. The Tribunal explained to the review applicant and her husband that it was unable to review this matter.
The applicant provided the following oral evidence. She stated that she has been in Australia with her husband and child for many years and their child is now a teenager and is unaware of the situation before them. Her husband stated that he wants to remain in Australia and that if not for the errors of his agent he would be able to. The review applicant stated that same and confirmed her desire to remain in Australia.
The Tribunal asked the applicant if she understood what the subclass 602 visa application was about. The applicant was vague in her response. The Tribunal explained it purpose and the evidence on file to suggest that the application was made for the review applicant’s husband to obtain a decision and meet the requirements for applying for Ministerial Intervention in the matter pertaining to his subclass 187 visa. The applicant was visibly upset. Both she and her husband confirmed they understood.
The Tribunal asked the visa applicant if her husband had a medical illness which would require him to remain in Australia for treatment and prevent him from departing and that would require her support. The applicant confirmed that he had no medical illness which required treatment or prevented him from departing Australia. She confirmed they did not want to leave Australia because their family are settled and their son considers himself an “Aussie”. They stated that they want to remain in Australia and could if not for the error.
The applicant confirmed she understood that she does not meet the criterial for a medical treatment visa and that the application was made by her migration agent as an avenue to lawfully seek Ministerial Intervention.
The applicant stated that she did not want to lie to the Tribunal and has acted with integrity throughout the process.
The applicant’s witness, Mrs McComish confirmed this to be the case and explained that the applicant and her husband have been severely disadvantaged by the unfortunate events.
The applicant’s husband stated that he has been in Australia with his wife and child for many years and his child is now a teenager and is unaware of the situation before them. He stated that he wants to remain in Australia and that if not for the errors of his agent he would be able to.
He has explained that his son is in high school and considered himself an “Aussie” and that his son was two years of age when he first came to Australia and that this is now home.
The applicant first came to Australia as a student in 2008. Her husband’s migration history indicates he selected a pathway from a student visa holder to a subclass 457 temporary work visa to a subclass 187 permanent visa and have spent very little time in making return visits to Mauritius.
The applicant’s witness also confirmed that the applicants seek review and rectification of the claimed error in his subclass 187 application and that the applicant has been a great contributor during his employment and that they are a good family who would like to remain in Australia.
The applicant and her husband presented as truthful witnesses who claim to have had a genuine pathway to permanency in Australia which was jeopardised by alleged errors by their Migration Agent.
Whilst the applicant provided evidence to suggest that she understood she did not meet the criteria for the Medical treatment Visa, the Tribunal has reviewed the application and decision.
Are the medical treatment requirements met?
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.
The applicant in her application clearly states that she is applying as a support person. Clause 602.212(4) requires that all of the following requirements are met in order to meet the criteria:
(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.
The applicant did not provide any evidence that her husband held a Medical Treatment Visa. At hearing, the applicant stated that her husband is healthy and does not require any medical treatment. She explained that they were unaware of the visa they were applying for and simply signed forms with their migration agent who they believe has given them incorrect advice and as a result also missed the deadline to apply for review of the previous migration matter. Their migration agent advised them that the application and review of this decision would enable them to seek Ministerial Intervention.
The applicant has applied as a support person for her husband Mr Marie Benito Marino Eustasie. Given the oral evidence provided by the applicant the Tribunal finds that he does not hold a medical treatment visa and as such the applicant does not meet clause 602.212(4).
The sub criteria for clause 602.212(2) relates to medical treatment and requires 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.
The Tribunal finds that clause 602.212(2) is not met as the applicant has confirmed that she is not being treated for any medical condition nor does she or indeed any member of her family require medical treatment.
The sub criteria for clause 602.212(3) relates to organ donors
(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.
The Tribunal finds that clause 602.212(3) is not met as the applicant has confirmed that she or her husband are not donating an organ for transplant.
The sub criteria for clause 602.212(5) relates to 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.
The Tribunal finds that clause 602.212(5) is not met as the applicant’s identification documents support that she is from Mauritius and until moving to Australia has resided there and is not from Papua New Guinea nor has she ever resided there.
The sub criteria for clause 602.212(6) relates to being unfit to depart Australia
(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.
The Tribunal finds that clause 602.212(6) is not met as the applicant has not turned 50 based on her identification documents and has not been assessed as being unfit to depart Australia by a Medical Officer of the Commonwealth.
The sub criteria for clause 602.212(7) relates to financial hardship
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.
The Tribunal finds that the applicant does not meet clause 602.212(7) based on the oral confirmation by the applicant and her husband that she does not hold a Medical Treatment visa and has not applied for a Medical Treatment Visa based on financial hardship grounds.
The sub criteria for clause 602.212(8) relates to 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).
The Tribunal finds that the applicant does not meet clause 602.212(2) to (6) and has not provided evidence of compelling personal reasons. As such the Tribunal finds that the applicant does not meet clause 602.212(8).
In summary and based on the reasons and findings above, the Tribunal finds that the applicant does not meet clause 602.212 in Schedule 2 to the Migration Regulations.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Rachel Westaway
Senior 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).

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