Ha (Migration)

[2023] AATA 504

Ha (Migration) [2023] AATA 504 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nhu Xuan Thuy Ha

REPRESENTATIVE:  Ms Janly Quach

CASE NUMBER:  2205774

HOME AFFAIRS REFERENCE(S):          BCC2022/1059257

MEMBER:Alison Murphy

DATE:9 February 2023

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 09 February 2023 at 9:10am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – genuine temporary entrant – Major Depressive Disorder – migration history – length of time onshore – Ministerial intervention requested – Australian citizen child – sole carer – inappropriate for referral – repeat requests – breached a fraud-related Public Interest Criterion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 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 29 March 2022 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 16 March 2022. 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 they were not satisfied the applicant intended to remain in Australia temporarily for the purposes of receiving medical treatment.

4. The applicant was invited to appear before the Tribunal to give evidence and present arguments. By correspondence dated 28 December 2022 the Tribunal was advised that the applicant would not attend the scheduled hearing and consented to a decision on the papers.

5. The applicant was represented in relation to the review.

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. The issue in this case is the whether the applicant intends to remain in Australia temporarily for the purposes of receiving medical treatment.

   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. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

10. In the visa application, the applicant gives details of her proposed medical treatment in Australia by stating that she will be taking medication on an ongoing basis and seeing a psychiatrist for treatment every 4 – 6 weeks. Her application is supported by a letter from Dr Thomas Luong, consultant psychiatrist, who states that the applicant seeks to remain in Australia for the purpose of psychiatric treatment so that she can take care of her two young daughters. Dr Long reports the applicant suffers from severe Major Depressive Disorder in the context of marked psychosocial stresses.

11. The delegate considered the information submitted in support of the visa application, but was not satisfied the applicant intended to remain in Australia temporarily for the purposes of receiving medical treatment. In making that assessment the delegate noted in the decision record that since entering Australia in 2009, the applicant had only been outside this country for 85 days. The delegate also noted that the applicant had applied for a partner visa as well as a protection visa, both of which were refused and those refusals affirmed by this Tribunal (differently constituted). The delegate considered the applicant’s migration history indicated that she intended to remain in Australia on an ongoing or permanent basis.

12. When the matter was listed for hearing before this Tribunal, the applicant’s (former) representative advised that the applicant would not attend the scheduled hearing and wished to make submissions to the Tribunal seeking the matter be referred to the Minister pursuant to s 351 of the Act. The Tribunal adjourned the review to allow this to occur and those submissions were lodged by the applicant’s (current) representative on 23 January 2023.

13. Those submissions confirm that the applicant’s intentions to waive her hearing rights and record that the applicant ‘understands and concedes that she would not meet the criteria for the grant of the medical treatment visa’. The submissions request that the Tribunal affirm the decision under review and refer the matter for the Minister’s attention under s 351 of the Act.

14. No further information has been provided to the Tribunal in support of the application for a medical treatment visa. While Dr Luong’s letter dated 13 March 2022 suggests that he intended to follow up her treatment for Major Depressive Disorder, there is no evidence before the Tribunal that this has occurred or that the applicant is otherwise receiving, or intending to receive, medical treatment in Australia. Nor does the submission of the applicant’s representative suggest that the applicant seeks to remain in Australia for the purposes of receiving medical treatment, rather she seeks Ministerial intervention so that she can be granted a visa to remain in Australia. In these circumstances the Tribunal is not satisfied the applicant genuinely meets the medical treatment requirements of the visa.

15. For these reasons the Tribunal is not satisfied the applicant meets the requirements of cl 602.212(2). Given the above findings, the requirements in cl 602.212(2) are not met and the decision under review must be affirmed.

    DECISION

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

    Ministerial Intervention

17. As noted above, the Tribunal has been asked to refer the matter to the Minister under s 351 of the Act. The basis of this is that the applicant is the single mother of two children, Daniel and Michelle, aged 9 and 7 respectively.

18. Departmental records indicate that Michelle is an Australian citizen and a copy of her passport has been provided to the Tribunal. It appears that Daniel is not recognised by the Department as an Australian citizen.

19. The applicant is the sole carer of both Daniel and Michelle. The Tribunal has been provided with an order of the Federal Circuit Court of Australia from October 2017 which orders that the applicant have sole parental responsibility for Daniel; including that she is permitted to apply for an Australian passport for Daniel and remove him from Australia in the absence of consent from his father. The representative’s submission states that the father of Michelle acknowledges parentage but refuses any involvement or support. As noted above, in March 2022 the applicant was diagnosed by Dr Luong with Major Depressive Disorder in the context of marked psychosocial stresses.

20. Having had her applications for a partner visa, a protection visa and a medical treatment visa refused, the applicant is prevented from making further visa applications onshore by s 48 of the Act without the Minister’s intervention. Should the Minister not intervene, she will become an unlawful non-citizen liable for detention and removal.

21. If the applicant is removed to Vietnam, the Tribunal accepts that Daniel and Michelle will go with her as neither has any contact or relationship with the other parent. As noted above, Michelle is an Australian citizen. Daniel will turn 10 years old in July 2013 at which time he will become an Australian citizen as a result of being ordinarily resident in Australia throughout the period of 10 years since his birth. The children have never departed Australia.

22. However having regard to the circumstances of the applicant and having considered the Ministerial guidelines relating to the Minister’s discretionary power under section 351 set out in PAM3 “Minister’s guidelines on ministerial powers (sections 351, 417, and 501J)” the Tribunal considers this case falls within the category of cases that the Minister has stated are inappropriate for referral by the Tribunal. 

23. This is because the delegate’s decision indicates the applicant has made two previous applications for Ministerial Consideration and the Guidelines state that the Minister does not wish to consider repeat requests, where the Minister (whether current or former) have previously received a request to intervene in a person’s case.

24. Further the applicant has been found by the Department and this Tribunal to have breached PIC 4020 and the Minister’s Guidelines state that it is inappropriate to consider cases in which the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of the visa.

25. In these circumstances the Tribunal considers it should not refer the matter to the Minister, but notes it remains open to the applicant to seek the Minister’s intervention directly.

    Alison Murphy
    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).