May (Migration)

[2018] AATA 5944

May (Migration) [2018] AATA 5944 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Natalie Bianka May

CASE NUMBER:  1718837

DIBP REFERENCE(S):  BCC2017/2580405

MEMBER:Susan Trotter

DATE:29 November 2018

PLACE OF DECISION:  Brisbane

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 4:59pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – support person for husband – grant of visa dependent on grant of husband’s visa – dismissal of husband’s visa affirmed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 602.212(4)

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 Immigration on 31 July 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 37-year-old citizen of Germany. She applied for the visa on 19 July 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).

3. The delegate refused to grant the applicant the visa on the basis that they were not satisfied that cl.602.212 of Schedule 2 to the Regulations was met as required.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 21 August 2017.

5. On 9 August 2018, the Tribunal invited the applicant to attend a hearing at the Tribunal on 30 August 2018.

6. On 15 August 2018, in conjunction with her husband, Mr Manuel May, who had made a separate application to the Tribunal in relation to the refusal to grant him a Subclass 602 visa,[1] the applicant sought an adjournment of the 30 August 2018 hearing.

   [1] Tribunal file no 1718864

7. The Tribunal declined the request for an adjournment but at hearing instead agreed to grant the applicant further time after the hearing in which to provide further evidence and/or submissions which would be taken into account.

8. The applicant appeared before the Tribunal on 30 August 2018 by video conference to give evidence and present arguments. With the consent of both applicants, the Tribunal held a joint hearing of the applicant’s hearing with her husband’s related application by video conference and therefore also heard evidence from the applicant’s husband in relation to the applicant’s application.

9. The applicant was represented in relation to the review. The applicant’s representative attended the hearing by telephone.

10. At the conclusion of the hearing, a further period of three weeks was requested by the applicant, and by the applicant’s husband in relation to his application, within which to provide further material. The Tribunal agreed to grant further time until 2 October 2018 and has taken into account further material received up until that time and also further material received between 2 October 2018 and the date of decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 for a Medical Treatment visa on the basis that she is a support person for her husband in Australia.

    Are the requirements met?

13. 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(4) outlines the requirements to be met by an applicant seeking to obtain a Medical Treatment visa on the basis that they are a support person. Importantly, the person to whom the applicant is to provide support must hold a Medical Treatment visa.

14. As discussed with the applicant, and her representative, at hearing, and as accepted by the applicant, the grant of the visa to the applicant is dependent upon the applicant’s husband being the holder of a Subclass 602 visa. The Tribunal discussed with the applicant that if her husband’s application was not successful, it followed that the applicant’s application could not be successful.

15. In relation to the applicant’s husband’s application, the Tribunal has today affirmed the decision to refuse to grant the applicant’s husband a Subclass 602 visa.[2] It follows that the applicant does not meet cl.602.212(4).

    [2] Refer to the decision dated 29 November 2018 in Tribunal case no. 1718864

16. The Tribunal notes that there is no suggestion and nor is it submitted that any of the other alternative sub-criteria are relevant in this case.

17. Given the above findings, the requirements in cl.602.212 are not met in relation to the applicant.

18. 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

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

    Susan Trotter
    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).