Kumari (Migration)

[2021] AATA 3546

Kumari (Migration) [2021] AATA 3546 (13 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunita Kumari

CASE NUMBER:  1915270

HOME AFFAIRS REFERENCE(S):          BCC2019/2354378

MEMBER:Meena Sripathy

DATE:13 September 2021

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 13 September 2021 at 4:29pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – period of treatment for which visa sought now passed – limited information about current conditions and further treatment provided to tribunal – COVID-19 in home country – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212(2)

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 23 May 2019 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 2 May 2019. 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 the delegate was not satisfied that clause 602.215 was satisfied.

4. On 23 July 2021 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 20 August 2021 at 11 am by video conference. On 23 July the applicant’s representative requested postponement of the hearing due to ‘medical issues’ and attached two medical certificates which stated that the applicant was ‘unfit for duties’ from 26 July to 21 August, but failed to specify any details of treatment or condition. On 26 July 2021 the Tribunal responded to the request for postponement and advised that, in view of the limited evidence provided, the request was declined and the hearing would go ahead as scheduled.  She was invited to provide more detailed information and supporting evidence for requesting postponement or why she cannot participate by remote hearing on this date. On 30 July 2021 the applicant  advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. On 13 August 2021 she provided written submissions for the Tribunal to consider.

5. The applicant provided written submissions to the Tribunal on 13 August 2021 and 8 September 2021 for consideration. This matter has been determined on the evidence available to the Tribunal.

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 whether the applicant meets any one of the permitted purposes for the Medical Treatment visa set out cl.602.212 and, if so, whether she meets cl.602.215.

   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. At time of application, in May 2019, the evidence indicates the applicant sought to remain in Australia until 31 October 2019 to seek medical treatment for Back Pain and Heel Pain.  She provided a Form 1507 in support of the application.

11. The period for which the applicant originally sought the visa in May 2019 has passed. No other evidence was since provided about medical treatment the applicant seeks, or if not medical treatment, what other subparagraph of cl.602.212 she relies on now.

12. She provided a written submission on 13 August 2021 referring to her ‘persisting medical ailments and stress and anxiety induced by the onset of covid 19 pandemic’ and the challenges faced by her home country India with respect to the disease, but no supporting evidence of the medical treatment sought or undertaken was provided.

13. On 13 August 2021 the Tribunal wrote to the applicant, acknowledging her written submissions, and informed her that in addition to the issue of whether she satisfied cl.602.215, the Tribunal will also be considering whether she meets cl.602.212 at the time of its decision and inviting her to provide updated information about medical treatment she is seeking or evidence to support any other subparagraph of cl.602.212 she relied on at this time.  On 18 August 2021 she was asked to provide this information by 27 August 2021. 

14. On 26 August 2021 the applicant provided information of an appointment scheduled for Tuesday 31 August 2021 to see a psychologist, Bill Efremidis, at 11 am.  On 31 August 2021 the applicant provided a letter from the psychologist she consulted via telehealth that day stating that she had requested a Psychology Assessment Report, and this would take 4 weeks to prepare.  The applicant requested 4 weeks to provide this report.

15. The Tribunal declined her request for a 4 week extension of time, stating that it was not clear how this evidence was relevant to the issues arising in the review, being whether she meets cl.602.212 and 602.215. She was given until 8 September 2021 to provide any further information and evidence relating to the issues arising in the review.

16. On 9 September 2021 the applicant provided a letter stating that she proceeded with the Medical Treatment visa because of her health issues, referring to her frequent backpains. She explained that the past year and disruptions it has caused have impacted her severely on a personal and psychological level.  She described her ongoing stresses and challenges due to her medical condition, exacerbated by financial hardships due to lack of work rights, causing her to struggle financially to survive and pay for her medical expenses.  She stated that she feels she has a better chance of survival in Australia due to better containment measures and medical infrastructure against the looming threats of a Covid 19 outbreak and that this medical treatment will provide her with the opportunity to heed to her deteriorating health.  She state that so far during the time she has resided in Australia she has always strived to fulfil all the Department’s visa regulations and guidelines and intends in future to ensure she abides by all the vis provisions and no conditions are in breach or default.

17. The Tribunal has considered all of the evidence and information before it.  In various communications to the Tribunal the applicant has referred to her ‘medical ailments’ but there is no evidence that she has made any upcoming arrangements to obtain medical treatment, or evidence of arrangements concluded to carry out that treatment or of the arrangements for the costs and expenses for that treatment. Despite requesting and inviting her to provide more detailed and substantive information to substantiate what medical conditions she suffers from and what treatment she seeks or is obtaining, she has not provided any further evidence.  In her own submission, she is struggling financially to support herself and stated that she has difficulties to pay her medical expenses. Therefore the Tribunal is not satisfied there is evidence before it that she is seeks to obtain medical treatment for which arrangements have been concluded to carry out that treatment and to pay for the costs and expenses of it.

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

19. There is also no evidence before the Tribunal that the applicant seeks to meet, or meets, any of the alternative grounds in cl.602.212.  Specifically, there is no evidence that she seeks the visa for the purposes of donating an organ for transplant; or to provide support for another person who seeks the visa for medical treatment; or that she is a citizen of PNG who resides in Western Province of PNG; or that she has turned 50 and been refused a permanent visa for reasons of health criteria.

20. Given these findings that the applicant does not meet any of the permitted purposes for the grant of a Medical Treatment visa, it is not necessary to consider whether the applicant has a genuine intention to stay temporarily for the visa purpose: cl.602.215 and for this reason the Tribunal has not considered this issue further.

21. 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

22. 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.

    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).