Myint (Migration)

Myint (Migration) [2019] AATA 2409 (18 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Mar Mar Myint
CASE NUMBER:  1805596
DIBP REFERENCE(S):  BCC2018/398454
MEMBER:Mary Urquhart
DATE:18 June 2019
PLACE OF DECISION:  Melbourne
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.602.215 of Schedule 2 to the Regulations
Statement made on 18 June 2019 at 3:02pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – inability to attend Tribunal hearing – genuine temporary entrant – fourth application – compelling and exceptional circumstances – fair and reasonable approach – palliative care – not available or accessible in home country – ability to depart Australia – life expectancy – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 602.215

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 12 February 2018 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 23 January 2018. 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).
The delegate refused to grant the applicant the visa because he/she found the applicant has not presented sufficiently compelling or exceptional circumstances to warrant further stay in Australia.
The applicant was represented in relation to the review by her registered migration agent.
Prior to the review hearing the Tribunal received various submissions including medical reports and submissions. (See Tribunal folios 234-291, ).
In response to a hearing invitation the Tribunal received a submission dated 10 April 2019 indicating that the applicant’s wife’s medical care is now palliative. It was submitted that she is experiencing extreme pain and discomfort caused by her health condition which is currently being managed by pain treatment prescribed by St Vincent’s hospital. She is not in any condition to attend the Tribunal hearing, and as her health deteriorates it is unlikely that she will ever be able to. A request was made that the Tribunal allows her to be absent from the proceedings.
In the above circumstances the Tribunal has proceeded to determine the application on the evidence and information before it.
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 satisfies the requirements of cl.602.215 which requires that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The applicant Mrs Mar Mar Myint is a citizen of Burma (Myanmar) born 6 February 1972. She is married to Mr Aung Kyaw Tun who has made an application for a subclass 602 visa as a supporting person. (Tribunal file 1805600).
The delegate records that at the time of their decision the applicant
“has not provided evidence that chemotherapy, scans or consultations they are seeking is unavailable in Myanmar, the country of their nationality or elsewhere. The applicant has not provided evidence that they are unable to access any services as required, in their home country or elsewhere.
The applicant has not provided medical evidence that their condition has deteriorated significantly to the point that they are unfit to travel, incapacitated, or incapable of departing Australia at this time. As stated the applicant has requested multiple travel and travelled in 2017.
The Medical letter written by Dr Christopher Hart dated the 8/112018 does not state the applicant must remain in Australia for treatment and that the treatment is unavailable in their home country. The Medical letter does not state the applicant is unable to access services such as chemotherapy or scans in their home country.
The applicant has not provided evidence that they have been assessed by a Medical Officer of the Commonwealth that they are unfit to travel, incapacitated, or incapable of departing Australia.
The applicant has not provided evidence of ties to their home country. The applicant has not provided evidence of incentive to depart Australia to return to their home country for residence. The applicant has not provided evidence to substantiate any claims that they will depart Australia In the near or foreseeable future”.
The delegate noted that since her first arrival in Australia on 28 April 2008 the applicant had spent a total of 1322 days in Australia and that the applicant has travelled frequently to Australia since 2008 and has held various visas.
This is the applicant’s fourth application for a medical treatment visa.
At the time of decision, the delegate was not satisfied the applicant presented sufficiently compelling or exceptional circumstances to warrant further stay in Australia.
The Tribunal has since then been presented with further medical evidence and reports. A report dated 10 April 2019 from St Vincent’s Hospital, St Vincent’s Specialist Clinics provided a report advising on the following
·     An update on the applicant’s medical status
·     An estimated time frame of how long the applicant will receive treatment before she dies
·     An explanation of the type of medical treatment she is receiving e.g. pain relief
·     A view as to her fitness to travel and
·     A reference to her Husband Mr. Ton being the applicant’s only support person outside of medical care.
The Tribunal accepts the applicant was diagnosed in 2012 as having metastatic colorectal cancer after which she received chemotherapy. The applicant underwent abdominal surgery in August 2014. With further disease progression she underwent pelvic exenteration and had an ileal conduit formation. Lung metastases were found 2017 and the applicant received further chemotherapy. She became severely unwell with infection originating from the urinary tract and severe nausea and vomiting. Ongoing issues have been small bowel obstruction, severe pelvic pain and bleeding from the fungating vulval lesion. She subsequently developed lung and vaginal metastases and the report indicates that all treatment options have now been exhausted.She is currently being treated with palliative care.
The report goes on to record that as the applicant’s condition is now palliative and as her health continues to deteriorate her care needs will increase and her husband’s care will become even more essential to enabling her to have a peaceful death in the place of her choice.
The report refers to the work of palliative care professionals working with dying people. It refers to the impact of loss and grief on applicant’s husband and the enormous sadness and grief he is suffering about the impending death of his wife. It refers to his vulnerability.
It was submitted that given the applicant’s medical circumstances both the applicant’s application and that of her husband for a Medical Treatment visas be approved to enable him to care for his wife through until the end of her life and for a period beyond to allow him time to process her death, to finalize any obligations that he has in this country and then return to his home in Burma.
The Tribunal has considered the totality of the evidence and information before it relevant to the issue of the genuineness of the applicant's condition and intentions.
The Tribunal accepts the applicant suffers from an ongoing medical conditions and that she is at a stage where she requires palliative care. The Tribunal accepts that it is preferable that she is in Australia because of the availability of appropriate treatment.
The Tribunal is satisfied on the evidence provided that the treatment including palliative care that the applicant's needs are not available or accessible to her in her home country.
The Tribunal accepts that the applicant is unable to indicate when she might be able to depart Australia, because she is too ill to depart, and because her prognosis is such that it is not anticipated that she will improve.
The Tribunal is satisfied that the applicant has no desire or capacity to seek employment, and that she has no intention of enrolling in a course of study longer than three months. The Tribunal is satisfied that she has no intention of lodging a claim for a Protection visa. The Tribunal further accepts that the applicant has abided by and intends to abide by the conditions of her visas to enter and remain in this country, to the extent possible, given her illnesses.
The Tribunal notes the intention of the visa is for temporary entry for medical treatment and notes also the compelling and exceptional circumstances of the applicant. The Tribunal notes policy guidelines suggesting that, in compelling and exceptional circumstances such as the applicant's, a fair and reasonable approach should be taken by decision-makers to the genuine visitor requirement.
The Tribunal further notes that decision-makers are expected to sensitively take into account the ability of the applicant to travel and to depart Australia, as well as the applicant's life expectancy.
The Tribunal accepts that the applicant is receiving palliative care in Australia, and that her life expectancy is such that her intended stay is temporary.
At the time of this decision, the Tribunal finds the applicant has presented sufficiently compelling or exceptional circumstances to warrant further stay in Australia.
For the reasons above, having regard to the considerations set out in cl.602.215 and having considered the evidence and circumstances of the applicant, the Tribunal is satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Given the findings above, 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.602.215 of Schedule 2 to the Regulations; and
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).

[2019] AATA 2409

18 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Jurisdiction

Statutory Construction