Le (Migration)

Le (Migration) [2018] AATA 5813 (29 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Hoang Yen Le
CASE NUMBER:  1704733
DIBP REFERENCE(S):  BCC2017/28638
MEMBER:Mary Urquhart
DATE:29 November 2018
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 29 November 2018 at 9:44am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – medical treatment for depression – ability to participate in Tribunal review – immigration history – holder of relevant substantive visa at time of application – Schedule 3 criteria – application lodged outside of relevant timeframe – unique or exceptional circumstances – advanced age – health issues – no family in Vietnam – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 602.213; Schedule 3, Criterion 3001

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 March 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 February 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).
On 6 March 2017 the delegate refused to grant the applicant the visa because the applicant did not hold a substantive visa at the time of application and does not meet subclause 602.213(1) and 602.213(2).
The applicant sought a review on 12 March 2017.
The applicant appeared before the Tribunal on 1 October 2018 and 28 November 2018. She did not engage in the proceedings to give evidence and present arguments. The Tribunal received oral evidence, submissions and argument from family members being the applicant’s niece Ms Ngoc Nhi Le and two brothers Mr Tri Nhan Le and Mr Manh Nhan Le. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 the requirements that are specified in the Migration Act and the Migration Regulations for a Medical Treatment visa, including cl.602.213.
The applicant Ms Le, born 12 November 1949 in Hanoi is a 69 year old citizen of Vietnam. She is divorced.
Evidence was given confirming movement records that indicates the applicant first came to Australia in 2005. The applicant’s immigration history in Australia reveals that from 2005 to 2012 she travelled to Australia on an almost yearly basis as the holder of visitor visas. She last arrived in Australia on 1 July 2012 as the holder of a UL 679 visa granted on 25 June 2012 valid for 3 months.
On 19 November 2012 the applicant applied for an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act). She was granted a Bridging visa in relation to the application. The delegate of the department refused to grant the visa on the basis that cl.836.227 was not met because the sponsor in the matter had passed away. The applicant sought a review at the Migration Review Tribunal (MRT) as it then was. The MRT affirmed the decision of the department. Subsequently the applicant unsuccessfully sought both a Protection visa and Ministerial intervention in relation to her carer visa application pursuant to s.351 of the Act. The evidence is that at all times she has had the benefit of Bridging visas whilst remaining in Australia.
At the time of application the applicant submitted that she was undergoing medical treatments for depression. It was submitted the applicant’s claimed treatment was expected to last over a 10 month period from 10 February 2017 to 25 December 2017. She is living with family members and is financially supported by them.
At the commencement of the hearing the Tribunal discussed with the applicant and parties the requirements for an onshore application for a medical treatment visa, and in particular the need to meet the requirements. The Tribunal explained it had no discretion in regard to meeting the requirements.
The applicant did not respond to the Tribunal’s request to take an oath or make an affirmation before giving evidence. The applicant sat quietly, seemingly unengaged. The applicant’s niece Ms Ngoc Nhi Le explained that due to her illness the applicant was unable to take part in the proceedings.
The Tribunal adjourned the hearing in order to provide an opportunity for Medical evidence to be submitted as to why the applicant is unable, if that is the case, to engage in the Tribunal review hearing.
At the resumed hearing a letter was submitted dated 15 November 2018 and signed by Dr Zoran Peric, a GP and Geriatrician. In his brief letter he states he saw the applicant on 14 November 2018. He said “her mood and appetite are somewhat better with treatment. However, overall, her disease is slowly progressing, as evidence by further deterioration in her memory, language and comprehension associated with loss of interest in everyday activities”.
Dr Peric refers to two other letters provided by him. One dated 4 June 2017 and a second dated 15 August 2017.He indicates the applicant requires full time care. In response to Tribunal questioning the applicant’s niece indicated that she accompanied the applicant to the doctor and translated for her aunt.
Whilst the Tribunal accepts the applicant is suffering from depression it finds Dr Peric’s letter does not satisfactorily address the issue of the applicant’s ability to engage in the review.
The Tribunal notes that in an earlier medical report of Dr Peric at Tribunal folio 62, undated, he records, inter alia, a view that the applicant “did not show any interest in active participation in the interview”. The Tribunal records that without the opportunity to explore her circumstances at the hearing and to test the factual basis of the applicant’s claims the Tribunal finds many personal matters were left unclarified.
Evidence was given that the applicant’s parents had come to Australia in 1991 after the war. Two of her brothers followed. Another brother and a sister migrated to the USA. The applicant remained in Vietnam. The evidence is that she divorced her husband some seven plus years ago. The evidence is that the applicant has no family remaining in Vietnam.
The applicant’s visa status and related requirements
Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.
Is the applicant medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth?
In the present case, the applicant does not meet cl.602.212 (6) was in Australia at the time of application, did not hold a substantive temporary visa at that time, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.
Is criterion 3001 met?
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001 (2), as set out in the attachment to this decision.
Department records confirm the visa applicant’s last substantive visa (UL-679) ceased on 1 October 2012. From the evidence contained in the department file the Tribunal accepts that the visa application was made on 21 February 2017. Therefore at the time of application the applicant was well outside the 28 day time period.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Based on the findings above, the applicant does not meet the requirements cl 602.213 for the grant of the visa. The decision under review must be affirmed.
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.
Ministerial Intervention s.351 of the Act
The Tribunal explained that it does not have the legal power to waive the mandatory criteria prescribed for this class of visa. The only person who is able to waive the criteria is the Minister, where he believes it is in the public interest to do so.
The applicant’s family indicated to the Tribunal that they wish to seek Ministerial intervention under s. 351 of the Act and requested the Tribunal to refer the case.
The Tribunal takes the issue of recommending the referral of any matter to the Minister seriously. It also notes that the theme running through the relevant Ministerial guidelines on this matter is that there will always be unusual or exceptional circumstances where intervention by the Minister to grant a visa is warranted because to do so would align with Australian community expectations.
The Tribunal notes the Guidelines identify unique or exceptional circumstances, and other relevant information, that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances.
They relevantly include the following:
· Strong compassionate circumstances that if not recognized would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
· Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
The applicant is aged 69. She is suffering from Depression and Cogitative Impairment. Her prognosis is said to be poor. The evidence is that she has no husband, children, family or home to go to in Vietnam. Her family in Australia are all engaged in the workforce and have worked hard to establish new lives in Australia as citizens. Her niece is a dentist, one brother works for a Pharmaceutical company and the other brother is involved with the operation of machinery. They gave evidence that they came to Australia to work, to try to build a better life and to contribute here. Evidence was given that it will be a great hardship for them to organize and assist the applicant if she has to return to Vietnam.
Having regard to the review applicant's circumstances as outlined above 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 345, 351, 417, 454 and 501J)" and the Tribunal's Policy and Procedures (1/2010) applying to referrals for Ministerial Intervention the Tribunal considers this case should be referred to the department to be brought to the Minister's attention.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Mary Urquhart
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).

[2018] AATA 5813

29 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction