KANG (Migration)

[2019] AATA 1183

KANG (Migration) [2019] AATA 1183 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms BEE GUEK KANG

CASE NUMBER:  1732421

DIBP REFERENCE(S):  BCC2017/4616210

MEMBER:Meena Sripathy

DATE:3 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 January 2019 at 11:30am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Visa) – genuine intention to stay temporarily – maintain ongoing residence in Australia – history of past non-compliance with visa conditions  – visa application history – insufficient incentives for the applicant to depart Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 8 December 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 November 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).

3. The delegate refused to grant the applicant the visa because the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted. The delegate, taking into consideration the applicant’s history of visa applications since her last arrival in Australia in June 2014, her request for permission to work and the medical evidence provided, formed the view that the applicant was attempting to obtain a further Medical Treatment visa to remain in Australia to work and to maintain ongoing residence in Australia.

4. The applicant appeared before the Tribunal on 30 November 2018 to give evidence and present arguments. This hearing was combined with that of her son, Mr Zen Hong Tong, who has a separate review application before the same Tribunal (AAT ref. 1732422).  The Tribunal also received oral evidence from Mr Tong.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is a 50 year old woman of Malaysian nationality. At the time of application she indicated she sought the visa for a period of 12 months to 27 November 2018, to undergo carpel tunnel surgery following approval of insurance arrangements for costs to be covered.  Included with the application were the following documents: Form 1507 dated 22 November 2017 from Dr Timothy Siu indicating that the applicant seeks to undertake treatment for carpel tunnel syndrome and is ‘awaiting surgery’; 2 reports from Prof G Gumley provided in the context of an insurance claim; correspondence from applicant’s lawyers and NRMA relating to the insurance claim and proposed time frame for surgery and treatment to be undertaken.  In a cover letter from the applicant’s representative, it is submitted that the applicant seeks to satisfy cl.602.212(2) as a person who seeks to undertake medical treatment on the basis that she is awaiting carpel tunnel surgery on both of her wrists as a result of injuries sustained in a car accident in November 2015, in respect of which she has an ongoing insurance claim.  It is submitted that costs for the treatment will be covered by the insurance company and was in the process of being arranged.  The applicant only intends to remain in Australia for the purposes of the surgeries and recovery period and to finalise her medical insurance claim and intends to comply with visa conditions and therefore meets cl.602.215.

8. The delegate refused the application, taking into consideration the applicant’s visa application history since her last arrival, noting that she had made an application for change of status to a permanent visa which was refused and also attempted to make an application for an Employer Nomination visa, and referred to her request for permission to work in her application.  The delegate was not satisfied that the applicant genuinely intended to stay temporarily for the purpose for which the visa was granted.

9. Before the Tribunal the applicant’s representative provided a submission and supporting documents on 23 November 2018.  He advised that the last of the applicant’s surgeries was completed on 9 April 2018 and she is currently undergoing rehabilitation after surgery to ensure full recovery before she has a further medico legal assessment to understand the extent of her injury and disability.  It is submitted that this is necessary to finalise her insurance claim against NRMA.  A letter from her personal injury lawyer is attached indicating that she continues to undergo rehabilitation since the surgery and once stabilised she will have a further medico legal assessment.  This process is anticipated to take 3-6 months. 

10. The representative states the applicant seeks the visa to complete this process and then she will return home.  It is submitted that the issues that led the applicant to apply for a change of status visa in 2016 has now been resolved and the applicant now wishes to return to Malaysia to take care of her 80 year old mother. Regarding the applicant’s request for permission to work, it is submitted that she previously sought this permission to sustain her medical and legal fees but the applications were all rejected and she has not attempted to seek work since then, and has been unable to work due to her medical condition.  She intends to continue to meet this condition and also has no intention to study.   

11. At the hearing the applicant told the Tribunal she lived in a rented apartment with her son and 5-6 other people.  Both applicants stated they are not working, and live off money sent to them from her sister overseas and support from friends here.   They pay rent of $200 per week.  The applicant’s sister has sent her around $10,000 over a period of time.

12. The applicant said she has no other family member other than her son in Australia.  In Malaysia she has her mother, 4 siblings and 2 other children, aged 19 and 21 years.  They are both working. 

13. She confirmed the following circumstances leading to the present application.  She had a car accident in Australia on 30 November 2015 and needed surgery on her wrists.  She had two lots of surgery, one on each wrist in March and April 2018 and has been undertaking rehabilitation since then.  She stated she attends a physiotherapist every week for treatment.  She said her progress has not been so good and she has to continue with this treatment for some time. When asked why she has not provided any evidence of this she said she does not have any evidence.  She has no receipts because the insurance company covers the cost.  When asked for details of the physiotherapist, she hesitated, then stated his name is Boon, and he is in Campsie but offered no further details. 

14. The Tribunal put to her its concern, given her evidence and the absence of supporting documentation about ongoing treatment, that she does not appear to meet cl.602.212(2).  It put to her that given the treatment she sought at time of application has been obtained now, it may find that she does not meet this threshold clause now and invited her comment.  She said she still needs rehabilitation and is undergoing it now with the physiotherapy. She just needs another 3-6 months and then she would be ready to return home.

15. The Tribunal asked the applicant about her migration and visa application history. She confirmed that she last entered Australia in June 2014 and has not left since then. She confirmed that she was granted a student visa valid until July [2016]. She confirmed that she also tried to lodge a employer nomination visa but it was found to be invalid. The Tribunal put to her that this application history may lead the Tribunal to find she has a desire to stay in Australia and it may not be satisfied that she genuinely intends to stay only temporarily. In response she said she wants to return to Malaysia as soon as her treatment is finished in 3-6 months. She still has some numbness and pain and so she needs further treatment. The Tribunal asked her why she could not obtain this treatment in Malaysia. She said here the insurance company pays for it, and also the treatment is better in Australia. When asked if she had enquired with the insurance company whether they would pay for treatment in her home country, she said she had not. The Tribunal put to her that there is no evidence before the Tribunal that she has any particular condition or complication that warrants ongoing treatment so long after the surgery or that she needs to have that treatment in Australia. The applicant responded that she should be able to return to Malaysia after 3-6 months. The Tribunal put to her that a period of 12 months has now passed since her application was made and it may consider her request for even more time now is indicative that she does not intend to stay temporarily for the purposes for which the visa is granted. When asked why the Tribunal should be confident she will depart after this period, she said she will not stay longer than that because she needs to go back.

16. The Tribunal asked Mr Tong if he wished to say anything further in support of his application or his mother’s.  He stated that he observes she still has some problems holding or carrying heavy items and he is worried about her.  He had no further comment.

17. The representative submitted that physiotherapy is treatment for the purposes of cl602.212(2) and the applicant continues to receive this.  They have provided evidence from the personal injury lawyer that the rehabilitation will take a further 3-6 months.  She asked the Tribunal for time to submit further evidence in support of the ongoing treatment.  She submitted that it is not relevant to the issue of cl.602.212(2) whether the treatment can be accessed overseas, only that it is being accessed, or intended to be accessed in Australia.  She conceded that this may be relevant to the issue of cl. 602.215, and whether the applicant had a genuine temporary intention. 

18. The Tribunal agreed to provide a period of 2 weeks to provide further evidence. 

19. On 14 December 2018 the Tribunal received a submission from the applicants’ representative and letters from the applicant’s physiotherapist and personal injury lawyer. The representative’s submission includes information to clarify the applicant’s response given at hearing about the whereabouts of her daughters.  It states that in the past year her daughters have separately visited Australia and currently are both studying in Australia on student visas.  

    CONSIDERATION

20. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The delegate refused the visa on the basis that the applicant did not meet cl.602.215 which requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  The delegate did not address the threshold criteria of cl. 602.212 of which seeking to obtain medical treatment is one of several alternatives and the one which the applicant indicates she seeks to meet.  The Tribunal has considered both of these issues in this review. 

    Are the medical treatment requirements met?

21. 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.

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

23. At time of application the applicant submitted a Form 1507 and evidence regarding her need for surgery for carpel tunnel syndrome, the cost of which was covered by her insurance claim. The Tribunal observes that she initially requested a period from November 2017 to November 2018 for the visa and that period has now passed.  When she appeared before the Tribunal at hearing on 30 November 2018, the applicant explained that she has had the surgeries on both her wrists in March and April 2018 and has been undergoing physiotherapy rehabilitation treatment since then.  She claimed that she continues to see the physiotherapist weekly and needs to continue to do this for another 3-6 months.  At the hearing she was queried about not having evidence of this treatment, any plan for future treatment or evidence of the arrangements for payment for it.  She subsequently provided a letter from Bon Bon Lee, a physiotherapist, stating the applicant requires ongoing regular weekly physiotherapy and that her treatment is covered by the CTP insurer. No evidence of receipts for payments of past sessions was provided, nor any evidence from the insurer to support her claim that they pay for the treatment.  The Tribunal notes that the letter from her personal injury lawyer, Stephen Young Lawyers, states that her treatment and rehabilitation is paid for by the insurer.

24. The Tribunal has carefully considered all of the evidence before it regarding the treatment she claims she still requires and is undertaking.  While not without some doubts, given the surgery for which she originally applied for the visa some 12 months ago has been undertaken and considerable time has passed since then, the Tribunal has decided to give her the benefit of its doubts on this issue and accepts that she satisfies this threshold criteria and meets the requirements in cl.602.212(2).

    Is the applicant unfit to depart Australia?

25. 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(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant:

    ·is in Australia

    ·has turned 50

    ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

    ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

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

27. In the present case, the Tribunal observes that the applicant turned 50 years old in February 2018, however there is no evidence before it that she applied for a permanent visa in Australia and was refused the visa on the basis of the health criteria or evidence from a Medical Officer of the Commonwealth that she is medically unfit to depart Australia due to a permanent or deteriorating disease or condition.

28. Given the above findings, the requirements in cl.602.212(6) are not met.

    Does the applicant have a genuine intention to stay temporarily for the visa purpose?

29. 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).  As the Tribunal has found above that the applicant is not medically unfit to depart Australia, this criteria does apply.

30. The delegate was not satisfied that the applicant genuinely intended to depart Australia in the foreseeable future, referring to her visa application history and history of past noncompliance with visa conditions, amongst the reasons. 

31. For the following reasons, the Tribunal has reached the same conclusion.  The applicant confirmed her migration and visa application history in Australia in her evidence to the Tribunal.  In response to it’s concern that this may indicate that she has a desire to remain in Australia beyond the purpose of this visa, she said that she wants to return to Malaysia as soon as her treatment is completed because she has an elderly mother there and other family members. She told the Tribunal the reasons she previously could not go back has resolved and she intends to return.  She did not mention that all of her children are presently in Australia.  However, in submissions provided following the hearing, the representative clarified that her daughters are presently in Australia on student visas. The Tribunal notes that in her application, she requested permission to work ‘to earn a living whilst awaiting surgery and to support the rest of her children in Australia’.

32. The Tribunal has carefully considered all of the evidence and information before it relevant to the issue of the genuineness of her intentions.  Having regard to the period of time she has already been in Australia, her history of making numerous visa applications in the past, the passage now of more time than she originally sought when she first applied for the visa, and the fact that all of her children are presently in Australia, it is not satisfied on the evidence before it that there are sufficient incentives for the applicant to depart Australia.  The Tribunal also takes into consideration and considers relevant in this context that there is no evidence before it that the treatment she seeks to undertake in Australia (ongoing physiotherapy following carpel tunnel surgery) is unavailable in her home country, Malaysia. It has considered but does not accept as convincing the applicant’s argument that her treatment would not be covered by her insurer in Malaysia.  The applicant has completed the surgery and a substantial amount of rehabilitation following the surgery already. The Tribunal takes into account, and considers significant, her request for permission to work in the application ‘to support her children in Australia’ and the fact that she has been unlawful in the past for a period of time which cause the Tribunal to have some concerns about whether she will comply with conditions on the visa if granted.

33. Taking all of the above into consideration, the Tribunal is not satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl.602.215(1)(a) to (c).  

1. Given the above findings, cl.602.215 is not met.

2. 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

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

   Meena Sripathy
   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.

   …….

   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.

   …….

   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.

   …….

   602.215

   (1)  The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

   (c)  any other relevant matter.

   (2)  However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.