Le (Migration)

[2022] AATA 247

Le (Migration) [2022] AATA 247 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Thu Bon Le

CASE NUMBER:  1926816

HOME AFFAIRS REFERENCE(S):          Bcc2019/4285619

MEMBER:Mark Bishop

DATE:1 February 2022

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 01 February 2022 at 1:26pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – no written statement of health condition – heavily pregnant at visa application – period of unlawful residence – application for a permanent visa – no further medical treatment after child’s birth – maintain ongoing residence in Australia – caring for ill family members in Australia – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 5 September 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 24 June 2016. 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.

4. The applicant appeared before the Tribunal on 1 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant’s husband, Mr Alison, also gave evidence to the Tribunal.

5. The applicant provided a copy of the decision record 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.

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

8. 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) which requires that an 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.

9. Clause 600.215 is set out immediately below:

   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.

10. Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:

    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.

11. Clause 602.212 (6) (f) provides as follows:

12. “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

13. The applicant did not provide a copy of a written statement that complied with cl.602.212 (6) (f).

14. Clause 602.212(6) does not apply in this case because there is insufficient evidence to make a finding that the applicant is medically unfit to depart Australia due to a “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”

15. The Tribunal finds the applicant does not meet the criteria set out in cl.602.212 (6) (f).

16. The applicant was born on 6 November 1991. Clause 602.212(6) (b) does not apply in this case because the applicant is under the age of 50.

17. Hence the applicant does not meet the criteria set out in cl.602.215 (6).

18. Accordingly the Tribunal turns to cl.602.215.

19. In the Application for a Medical Treatment Visa dated 28 August 2019 the applicant declared she was “currently 26 weeks pregnant with my husband’s child”, would attend Ballarat base hospital and care-brae clinic and provided a copy of a Form 1507 Evidence of Intended Medical Treatment and associated Antenatal History and Management Plans plus schedule of Antenatal visits (dated 22 August 2019).

20. The delegate summarise the applicant’s visa/immigration history as follows:

    Departmental records demonstrates that:

    ·    “On 15 November 2013, the applicant arrived in Australia as the holder of a Student (subclass 573) visa.

    ·     On 15 May 2015, the applicant lodged a Partner (subclass 820/801) visa. This was refused on 10 January 2018.

    ·    On 27 August 2019, the applicant lodged a Medical Treatment (subclass 602) visa. This was deemed invalid on 28 August 2019.

    ·    The applicant currently holds a Bridging visa E (subclass 050) visa.

    ·     During the applicant’s time in Australia, the applicant has been an unlawful non-citizen for 581 days.

    ·    On 28 August 2019, the applicant lodged an application for a Medical Treatment visa. It is stated that the applicant would like to remain in Australia until 30 June 2020 to seek medical treatment for Pregnancy. A form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.”

21. The delegate made the following set of findings:

    ·“The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state they must remain in Australia for ongoing consultation. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.

    ·In the Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future. Departmental records confirm that they have unsuccessfully applied for a permanent visa onshore and spent a considerable period unlawfully in Australia without regularizing their migration status. Therefore I find that their adverse migration history strongly indicates that they intend to continue to seek a visa pathway to remain in Australia on a permanent basis.

    ·At the time of decision, the applicant has not presented any personally compelling or exceptional circumstances to warrant departure from the legislative requirement of the genuine visit criterion which is mandatory for the grant of a Medical Treatment visa.

    ·I have considered the claims and supporting evidence that they have provided with their application. On balance, I find that they are attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

    ·I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.”

22. The applicant provided copies of medical certificates relating to the applicant’s husband (future carer role due to husband having chronic low back injury dated 8 January 2022) and mother-in-law (wheelchair bound and requires a full time carer dated 6 January 2022).

23. The applicant made written submissions (Doc ID 9280691) as to the availability of counsel. The Tribunal considered this submission.

24. In evidence the applicant advised the Tribunal as follows:

    ·She is married and lives as part of a 4 person family (self, husband, child and mother-in-law) in Ballarat.

    ·She had her baby on 19 November 2019.

    ·She has not received any medical treatment since the birth of her child and does not currently have any medical appointment or future medical consultations for herself.

    ·Her husband does not work because of a severe back problem. Her husband requires assistance. He mother-in-law is elderly, wheelchair bound following a 2^nd stroke in 2011 and requires assistance.

    ·She wishes to stay in Australia and at the end of the hearing requested the Tribunal make a recommendation for Ministerial Intervention (MI).

    ·She is not a doctor or nurse and has not received any training in caring. She does not work in Australia.

25. In evidence ethe husband of the applicant advised the Tribunal as follows:

    ·Until late January 2022 he was a NZ citizen. He is now an Australian citizen.

    ·He cannot work because of an injury to his hip arising out of a fall on a wet floor in a fast food restaurant. He is processing a public liability claim.

    ·He has been a registered carer for his mother since 2011. In the 3 years prior to his accident he did casual worker as a chicken meat packer. He has not worked since his fall.

    ·He receives $1,300 per fortnight being combined carer payment and childcare assistance. His mother receives an aged pension of $1,000 per fortnight. The total family unit income is $2,300 per fortnight.

    ·He supported the request by the applicant for MI.

26. The applicant advised the Tribunal she had not been receiving any medical treatment and had no appointments for future medical treatment or future medical consultations. The applicant advised the Tribunal she wished to remain in Australia to look after her husband and mother-in-law. The Tribunal notes that the applicant’s husband is currently filling that role and has been receiving a carer’s pension for many years to facilitate that role. Accordingly the Tribunal is of the view the applicant’s husband is the main carer. In respect of the applicant’s husband  the applicant provided only the most basic written information (a one paragraph medical note) to the Tribunal. The applicant did not provide sufficient medical evidence that confirms the need for a carer or her ability to carry out that role. Indeed it is slightly incongruous that the applicant argues her claim on being a carer to her husband when he performs that role and receives a government payment for carrying out that role of carer. The Tribunal gives significant weight to the applicant’s immigration history and visa record inclusive of a lengthy period of being an unlawful non-citizen. It appears to the Tribunal the applicant is intent on remaining in Australia on a permanent .basis

27. The Tribunal has considered all the written evidence and oral submissions of the applicant and witness. The Tribunal is satisfied that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that she does not genuinely intend to remain in Australia on a temporary basis.

    Request for Ministerial Intervention

28. The  applicant requested the Tribunal refer the matter to the Minister for Intervention.

    Referral to the Minister by the Tribunal

29. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his or her public interest powers,  and nor is there any statutory power for the Tribunal to make a binding recommendation in this regard. 

30. The power under s351(1) may only be exercised by the Minister personally.  Further, the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person (including the Tribunal), or in any other circumstances.

31. A review Tribunal may refer a case to the Department if the Member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the Ministerial Intervention guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.

    President’s Direction (hyperlinks removed)

32. Members should have regard to the Ministerial Guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The Member’s views will be brought to the Minister’s attention by the Department under the guidelines.

33. The Member may refer a case to the Department on the basis that the Member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

34. The circumstances which the member considers warrant the case being brought to the Minister’s attention should be set out in the Member’s statement of decision and reasons and may also be set out in the referral letter to the Department.

35. If an applicant requests a Member to refer a case to the Department and the member decides not to do so, the Member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.

36. The Minister’s guidelines describe the types of cases that might be referred for the Minister’s consideration. The Minister has described the types of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration. The Minister’s guidelines indicate that certain cases that do not meet the guidelines for referral are inappropriate to consider. The facts of this case fall within a type of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration (all hyperlinks removed).

37. The Tribunal has reviewed the list and types of exceptional circumstances that are set out in the Ministerial guidelines. The applicant has not made the Tribunal aware of circumstances that might be characterised as follows:

38. “Compassionate circumstances regarding age and health and psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship”

    Decision re ministerial Intervention

39. The Tribunal is satisfied that the set of circumstances as outlined above are not unique or exceptional. The applicant has resided in Australia for a lengthy period both lawfully and non-lawfully. Her various attempt to gain lawful status have failed .Whilst the Tribunal appreciates the current adverse circumstances of the applicant this is not sufficient grounds to seek intervention at Ministerial level. The Tribunal does not support the Request for Ministerial Intervention.

40. The Request  for Ministerial Intervention is not supported by the Tribunal.

41. The Tribunal notes that at all times the applicant has the right to make an approach to the Minister for intervention.

42. The Tribunal is satisfied that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that she does not genuinely intend to remain in Australia on a temporary basis.

43. There is insufficient evidence for the Tribunal to find the “applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”.

44. Given the above findings cl. 602.215 is not met.

    DECISION

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

    Mark Bishop

    Member