Morris (Migration)

Morris (Migration) [2023] AATA 442 (1 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Diane Marie Morris
REPRESENTATIVE:  Mr James Hammond
CASE NUMBER:  2205354
HOME AFFAIRS REFERENCE(S):          BCC2021/1710547
MEMBER:Melissa McAdam
DATE:1 March 2023
PLACE OF DECISION:  Sydney
DECISI ON:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:
·cl 602.212(2) of Schedule 2 to the Regulations

Statement made on 01 March 2023 at 4:17pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – medical treatment requirements – expenses covered by family – private health insurance – Immigration Health Examinations – long-term disability and treatment – health requirement – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 602.212
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 Home Affairs on 1 April 2022 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review.
The applicant applied for the visa on 2 September 2021. 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).
Visa application
The applicant set out the following information in her visa application:
a.She was born in Hyderabad, Telangana, India.
b.She is a national of India.
c.She is not married.
d.She is in Australia.
e.She wishes to stay in Australia for the purpose of medical treatment. She will undertake medical care between 07 September 2021 and 07 September 2026.
f.She is seeking medical treatment in Australia for defects caused by congenital rubella syndrome. The applicant requires treatment for the following conditions:
i.cardiac issues,
ii.eye prosthesis, and
iii.breast microcalcification.
g.These treatments costs were going to be met by private health insurance and with any out-of-pocket expenses covered by her brother.
h.The medical treatment was to be undertaken at Melbourne Cardiovascular and Diabetes Centre.
i.The applicant’s brother is nominated as the person who would be providing support to her.
The applicant submitted a Form 1507 completed by Yuvaraj Malaiapan of Melbourne Cardiovascular and Diabetes Centre, dated 26 August 2021, who writes that the medical treatment is for severe hypertension in congenital heart disease with residual pulmonary stenosis.
A second Form 1507, completed by Dr Briar Reid of Keo Care Medical Centre dated 27 August 2021, was submitted to the Department. It provided that the medical treatment was for numerous birth defects from congenital rubella syndrome.
The Delegate wrote to the applicant on 8 November 2021 and 23 March 2022 requesting her to complete her Immigration Health Examinations.
According to the Delegate’s Decision record, at the date of the decision there was no indication that the applicant had completed her health examinations. The Delegate was therefore not satisfied that the applicant met the requirement of cl 602.212(2)(d) and therefore found that the applicant did not meet the requirements of cl 602.212.
Information to the Tribunal
The applicant submitted the following submissions to the Tribunal regarding her health examination:
a.On 28 April 2022, the applicant provided a copy of her BUPA appointment scheduled for 25 May 2022 at 11:45 am.
b.On 27 May 2022, a copy of a medical record that she had completed the medical examinations required for a subclass 602 Medical Treatment visa application, including the tax invoice/receipt.
c.A duplicate copy of the medical examinations completion record provided on 27 May 2022.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
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 has met the criterion under cl.602.212(2).
Are the medical treatment requirements met?
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, 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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
On the basis of the evidence before it, as set out earlier, the Tribunal accepts that the applicant seeks to obtain medical treatment for birth defects caused by congenital rubella syndrome.
The arrangements for treatment have been concluded
The applicant has engaged with various medical centres and practitioners regarding her condition:
a.The applicant scheduled appointments at Monash Heart Dandenong for 20 October 2021 and Melbourne Cardiovascular and Diabetes Centre for 02 December 2021.
b.On 09 August 2021, a letter from Briar Reid of Keo Care, expressed that he had been working with the applicant and her family for two to three years. The accompanying report outlined her medical treatment requirements due to a combination of her long-term disability and medical needs as a result of her condition.
c.A letter from Dr Radhika Ramkrishna dated 26 August 2021, indicated that the applicant had been attending First Health Medical Centre since June 2019 and stated that the applicant required ongoing monitoring due to her medical conditions.
d.In addition, correspondence from Dr Yuvaraj Malaiapan of Melbourne Cardiovascular and Diabetes Centre dated 26 August 2021, confirmed that the applicant was under care for severe hypertension and congenital heart disease.
e.On 07 September 2021, a further letter from Briar Reid of Keo Care stated that the applicant would require intensive medical treatment in Australia for at least the next 5 years.
The Tribunal is satisfied that the applicant meets the criterion under cl 602.212(2)(b).
The treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia
As the applicant’s treatment is not in relation to an organ transplant, the Tribunal finds that clause 602.212(2)(c) does not apply.
The applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community
The delegate’s decision records that the applicant failed to satisfy cl 602.212(2)(d) because she failed to respond to the delegate’s repeated requests to provide further information and undergo a health check examination for immigration purposes.
On 05 April 2022, the applicant’s brother wrote to the Department detailing their efforts to complete the mandatory health assessment. The email explained that the scheduled appointment on 10 January 2022 was cancelled due to a COVID-19 situation at the centre. The applicant re-scheduled her medical examination appointment for 25 May 2022.
On 28 April 2022, the applicant provided the Tribunal with a copy of her scheduled BUPA appointment.
On 27 May 2022, duplicate scanned copies recording the applicant’s BUPA medical examinations dated 25 May 2022 were submitted to the Tribunal.
Information in the Department’s records shows that on 29 May 2022 the applicant was recorded as having met the health requirement.
Accordingly, the Tribunal finds that the applicant satisfies cl 602.212(2)(d).
Arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded
The applicant evinced in her department application that her stay in Australia would be funded by private health insurance and any out-of-pocket expenses would be covered by her brother.
The Tribunal is satisfied that the requirements of cl 602.212(2)(e) are met.
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.
The applicant’s evidence is that her medical costs and other related costs are being paid by either her private health insurance or her brother in Australia.
The applicant also supplied several documents confirming her private health insurance policy with Medibank.
In addition, the applicant’s brother submitted a Statutory Declaration dated 01 September 2021 and bank statements, verifying that he would be able to fund and support her stay.
The Tribunal is therefore satisfied that the payment of the applicant’s medical treatment costs will not be a charge on the Commonwealth, a State, a Territory, or a public authority in Australia, and that the applicant meets the requirements in cl 602.212(2)(f).
Conclusion
Given the above findings, the requirements in cl 602.212(2) are met. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.
decision
The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:
·cl 602.212(2) of Schedule 2 to the Regulations.
Melissa McAdam
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).

[2023] AATA 442

1 March 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies