Kennedy (Migration)

[2023] AATA 2921

Kennedy (Migration) [2023] AATA 2921 (28 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ava Kennedy

CASE NUMBER:  2304080

HOME AFFAIRS REFERENCE(S):          BCC2023/1019823

MEMBER:Naomi Schmitz

DATE:28 August 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 28 August 2023 at 12:32pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – support person for family member – spouse refused a Medical Treatment visa – proposed surgery in Australia abandoned – compelling personal reasons – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 362
Migration Regulations 1994, Schedule 2, cl 602.212; Schedule 4, Public Interest Criterion 4005

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 3 March 2023 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 8 February 2023. 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 at the time of decision the applicant did not meet the requirements of subclauses 602.212(2)-(8).

4. On 21 March 2023 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 10 August 2023 the Tribunal invited the applicant under s 360(1) of the Act to appear at a Tribunal hearing commencing at 9:00am (WA time) on 25 August 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal held a combined hearing so that the applicant minor and her siblings, also minors, had their cases heard together (related cases 2304076 and 2304081). The Tribunal was required to do this because it had considered the information it had before it and was unable to make a decision favourable to the applicant.

6. The applicant is currently aged 15 years and resides in Western Australia, Australia. She is a citizen of the United Kingdom (UK). On 25 August 2023, the Tribunal received evidence from the applicant’s mother, the primary applicant Ms Sharlene Brown (case number 2304079) who has applied for a Medical Treatment visa on the basis that she requires medical treatment. The Tribunal has proceeded to decide the review application on the evidence available to the Tribunal. ^[1]

   [1] Section 362B [Part 5] Migration Act 1958 (Cth)

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 is the support person of her mother, or someone else, who has a Medical Treatment visa, or whether the applicant herself requires a Medical Treatment visa.

9. This decision should be read in conjunction with case 2304079 in respect of the primary applicant, the applicant’s mother, Ms Sharlene Brown. In case 2304079 the Tribunal affirmed the decision on review on 25 August 2023 at 4:33 pm.

10. In the applicant’s visa application, she did not allege that she was seeking medical treatment pursuant to subclause 602.212(2) and did not allege that she sought to donate her organ(s) for transplant in Australia under subclause 602.212(3). The applicant indicated that she applied for the Medical Treatment (Support Person) visa as a person who would provide support to a person seeking medical treatment in Australia pursuant to subclause 602.212(4). The applicant’s intentions regarding the Medical Treatment (Support Person) visa were based on her mother’s medical treatment. As the applicant’s mother was not the holder of a Subclass 602 Medical Treatment visa at the time of decision, the applicant’s visa was refused.

    FINDINGS

11. 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.

12. Relevantly to this matter, cl 602.212(4) relates to the applicant as a support person to her mother who separately sought review of her Subclass 602 Medical Treatment visa, to obtain medical treatment. Broadly speaking, it requires that the applicant seeks to provide emotional and other support to an applicant who satisfies the requirement of a Subclass 602 Medical Treatment visa, and the applicant satisfies the public interest criterion 4005.

13. The applicant did not claim that she was seeking medical treatment herself or that arrangements have been concluded to carry out such treatment. No medical evidence was provided in support. As such, the applicant cannot meet subclause (2).

14. The applicant did not claim that she sought to donate an organ(s) for transplant in Australia. No medical evidence was provided in support. As such, the applicant cannot meet subclause (3).

15. The primary applicant gave evidence that she has not proceeded with her weight loss surgery due to limited finances and being a single mother and primary caregiver to her three children. She stated that the applicant sought the Medical Treatment visa pursuant to clause 602.212(4) so her children could provide her with ‘emotional support’ and ‘help around the house’ doing chores after her proposed surgery. She stated the children’s father is a citizen of the UK and does not reside in Australia and that she and her children have no contact with him. The applicant and her two siblings attend school, the applicant and her brother are at high school and the applicant’s younger sister at primary school between 8:30 am and 2:50 pm. All children are actively involved in sporting and social activities such as rugby and dance which the primary applicant drives them to.

16. Pursuant to s 359AA of the Act, the Tribunal Member explained to the applicant’s mother, the primary applicant, that although the Tribunal was yet to make a final determination regarding her application for review and maintained an open mind, that if the primary applicant did not satisfy the Subclass 602 visa criteria that it would be a reason or a part of the reason for the Tribunal affirming the decision under review, because in order for the applicant to satisfy 602.212(4), the person she intends to support, her mother, the primary applicant, must be the holder of a Medical Treatment (Subclass 602) visa. The Tribunal Member asked if there was anything the mother, the primary applicant, wished to say as to how her daughter, the applicant, could otherwise satisfy clause 602.212. The mother, the primary applicant, stated that her son had been referred to a school nurse for self-harm and was having suicidal thoughts. No medical evidence was filed in support and the mother and the primary applicant indicated that her son has not lodged a Medical Treatment visa application. As the person the applicant seeks to support does not hold a Subclass 602 Medical Treatment visa, the applicant does not meet clause 602.212(4).

17. The person with the claimed medical condition which the applicant seeks to support is the applicant’s mother. As outlined in paragraph [9] above, the Tribunal affirmed the delegate’s refusal of the applicant’s mother’s application for a Medical Treatment visa. As the person the applicant seeks to support does not hold a Medical Treatment visa, the applicant does not meet subclause (4). The Tribunal does not have any evidence that any other person requires support.

18. The applicant is not claiming that she is a citizen of Papua New Guinea. Nor does the applicant reside in the Western Province of Papua New Guinea. The Tribunal also has no evidence before it that 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 of Queensland. Therefore subclause (5) is not satisfied.

19. While the applicant is in Australia, she has not turned 50 as she is 15 years of age, being born in 2007. Information submitted by the primary applicant indicates that the applicant has not applied for a permanent visa in Australia which was refused. The Tribunal does not have evidence before it that 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 applicant therefore does not meet the requirements of subclause (6).

20. While the applicant is dependent on her mother for financial support, there is no evidence of financial hardship. Furthermore, the applicant is not the holder of a subclass 602 visa; or a subclass 675 (Medical Treatment (Short Stay)) visa; or a subclass 685 (Medical Treatment (Long Stay)) visa. The Tribunal does not have information before it that the applicant or a member of her immediate family, is likely to become a charge of the Commonwealth, a State, or Territory or a public authority in Australia. Consequently, the applicant does not meet subclause (7).

21. While the Tribunal appreciates that it is convenient for the applicant to remain in Australia for her secondary school education, friends, sporting, and social activities the Tribunal is not satisfied that these matters constitute ‘compelling personal reasons’ as many applicants would prefer to live in Australia than return to their home country. Accordingly, the Tribunal is not satisfied that subclause (8) is met.

22. Given the above findings, the requirements in cl 602.212(2) to (8) are not met.

23. 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

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

    Naomi Schmitz

    
    

    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).