LOPES VIANA (Migration)

[2019] AATA 6464

LOPES VIANA (Migration) [2019] AATA 6464 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms PRISCILA LOPES VIANA

CASE NUMBER:  1810078

DIBP REFERENCE(S):  BCC2018/1337831

MEMBER:Louise Nicholls

DATE:11 November 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 11 November 2019 at 11:52am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Support Person requirements – employed as carer for an Australian citizen – reliance on the applicant for daily activities – transport to medical appointments – active involvement in community and charitable organisations – Ministerial Intervention referral – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 602.212(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Brazil and is 31 years of age. She was granted a temporary work visa on 5 September 2014 and arrived in Australia on 19 October 2014. Her visa ceased on 4 April 2017 and since that date she has held bridging visas.

2. The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 20 March 2018. She provided a number of documents with the application, including:

   ·Submissions made by the applicant’s representative on 20 March 2018.

   ·Form 1507 (Evidence of intended medical treatment) completed by Dr Igal Augarten in relation to medical treatment for Ms Catherine Cunio.

   ·Letter from Dr Nicholas Cunio regarding the employment of the applicant as carer for his mother, Ms Catherine Cunio dated 22 November 2017.

   ·Letter from Catherine Cunio regarding the applicant and the care she provides Ms Cunio dated 22 November 2017.

   ·Notification of bridging visa grant 6 April 2017.

   ·A photocopy of the biodata page of the applicant’s Brazilian passport.

3. On 26 March 2018 a delegate of the Minister for Immigration refused to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa because the delegate was not satisfied that the applicant met any of the requirements of cl.602.212 of the Regulations.

4. This is an application for review of that decision and it was lodged on 11 April 2018. The applicant provided a copy of the delegate’s decision record with the application.

5. On 17 September 2019 the applicant was invited, pursuant to the provisions of s.359(2) of the Act, to provide relevant information.

6. In response, the applicant’s representative made written submissions and provided letters of support from Ms Catherine Cunio dated 2017 and 2019; a support letter from Dr Nicholas Cunio 2017 and a medical certificate from Dr Augarten, Ms Cunio’s treating doctor.

7. The applicant appeared before the Tribunal on 28 October 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. The applicant gave evidence about her background, her visa history and current circumstances. The Tribunal also discussed the requirements for a medical treatment visa. The applicant presented as an honest witness who gave straightforward evidence at the hearing.

8. After the hearing the applicant provided further documents which essentially were letters of support attesting to her good character and her involvement in many charitable and community activities in Sydney.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. At the time of application, 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).

11. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

12. The issue in this case is whether the applicant meets the essential requirements for the grant of the visa. The applicant seeks to satisfy the requirements for a “Support Person” as set out in cl.602.212(4).

    Background

13. The applicant is a citizen of Brazil and is 31 years of age. She and her former husband first came to Australia for a short holiday in May 2014 before they returned to Australia as holders of Subclass 457 temporary work visas. The applicant’s former husband was the primary visa holder with the applicant being the secondary visa holder.

14. Following their move to Australia the couple’s marriage broke down and despite attempts to work things out, the applicant’s former husband met someone else and the separation became permanent. The applicant’s former husband notified the Department of the marriage breakdown and the applicant’s visa was cancelled. She told the Tribunal that she and her former husband had leased a property together and had made other arrangements which were not easy to settle in a short period of time. The applicant obtained migration advice and sought review of the cancellation decision but was unsuccessful in that review.

15. In the meantime the applicant had commenced working for Ms Catherine Cunio as a carer. Ms Cunio is 85 years old, is a widow and lives in Sydney. The applicant lives in the home with Ms Cunio. During the time the applicant was working with her, Ms Cunio had a fall and subsequently became highly dependent on the applicant. Ms Cunio asked the applicant not to leave as she had become reliant on her for many of her daily activities as well as taking her to medical appointments.

16. The applicant has provided a number of documents which relate to Ms Cunio’s medical and care needs, the applicant’s role in caring for Ms Cunio and her current circumstances.

    Are the medical treatment requirements met?

17. 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.

18. Relevantly to this matter, cl.602.212(4) relates to an applicant seeking to give emotional and other support to another person.

19. With respect to the specific requirements, Regulation 602.212(4) provides

    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.

20. Sub clause 602.212(4) provides that the “support person” referred to in cl.602(4)(a) must provide support to the holder of a Subclass 602, Subclass 675 or Subclass 685 visa.

21. As discussed at the Tribunal hearing, the applicant cannot meet the requirements as the person for whom she cares, that is Ms Cunio, is an Australian citizen.

22. There is no evidence and the applicant has not claimed that she meets any of other requirements set out in cl.602.212(a)-(f).

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

    Conclusion

24. 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.

    Referral for consideration of Ministerial Intervention.

25. In his written submissions, and in oral submissions to the Tribunal, the applicant’s representative noted that it appeared that the applicant may not meet the requirements for the visa.

26. Notwithstanding, the applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

27. As set out earlier in this decision, the Tribunal considered that the applicant was an honest and thoughtful witness. It accepts that, due to the breakdown of her marriage, she was placed in a difficult position through no fault of her own when her visa was cancelled. She had little notice and was unprepared to deal with matters such as the termination of lease arrangements, settling the jointly owned property and separating joint financial obligations. She also noted that the circumstances of the marriage breakdown and her husband’s re-partnering caused many difficulties in managing matters relating to the breakdown. She sought review of the cancellation decision and also obtained work in looking after Ms Cunio in the meantime.

28. Following Ms Cunio’s fall she found that Ms Cunio became heavily reliant on her and this evidence is supported by letters from Ms Cunio and Ms Cunio’s son.

29. The applicant has also provided evidence of her active involvement in several community and charitable organisations such as eKa CIRCLE, Sydney Adventist Hospital as a Spiritual Care Volunteer and in other church volunteer programs, as a co-manager of an anti-suicide program known as Life Matters and as a community volunteer for a youth program, “Stand Tall”, which attempts to address mental health problems in school age children.[1]

    [1] Letter from Company Director of eKa CIRCLE (undated); Letter from Acting Manager Spiritual Care Services Sydney Adventist Hospital (29 October 2019), letter from Co-ordinator Recovery Road and ADRA Connections (29 October 2019); Letter from CEO of Standtall (29 October 2019); Letter from Senior Pastor of Fox Valley Adventist Church (29 October 2019).

30. The Tribunal notes that the letters of support all state that the applicant is a person of the highest integrity, that she provides substantial assistance for several charitable and community programs and that the Australian community will benefit from her presence.

31. The Tribunal has considered the guidelines set out in Policy Guidelines on Ministerial powers s.351,s.417 and s.501J. One of the guidelines refers to circumstances where

    ·strong compassionate circumstances that if not recognised 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.

32. The Tribunal has considered the submissions and evidence relating to Ms Cunio’s reliance on the applicant for many aspects of her care. Further the applicant appears to be involved in many charitable activities which contribute to the best interests of vulnerable members of the Australian community.

33. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Louise Nicholls
    Senior 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).