NAGARKOTI (Migration)

[2022] AATA 3758

NAGARKOTI (Migration) [2022] AATA 3758 (14 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Binod NAGARKOTI

REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)

CASE NUMBER:  2105203

HOME AFFAIRS REFERENCE(S):          BCC2021/478892

MEMBER:Naomi Schmitz

DATE:14 October 2022

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 602.212(4)(a) of Schedule 2 to the Regulations.

Statement made on 14 October 2022 at 11:43am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – member of the family unit – support person – primary visa application remitted upon review – heavy incapacity – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

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 Home Affairs on 15 April 2021 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 March 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).

3. The delegate refused to grant the applicant the visa because at the time of decision the applicant did not meet the requirements of subclauses 602.212(2)-(8).

4. On 23 April 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicant did not file any medical evidence in support of his application for review.

5. On 21 September 2022 the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:30am on 10 October 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had before it and was unable to make a decision favourable to the applicant.

6. The applicant appeared before the Tribunal on 10 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant, the applicant’s wife, Mrs Shovita Sharma (Mrs Sharma) (case number 2105201). The applicant consented to a joint hearing with the primary applicant. The applicant was represented in relation to the review. The representative did not attend the hearing.

7. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 is the support person of his wife, or someone else, who has a Medical Treatment visa, or whether the applicant himself requires a Medical Treatment visa.

9. This decision should be read in conjunction with case number 2105201 in respect of the Mrs Sharma. In case 2105201 the Tribunal remitted the decision on review on 13 October 2022 at 2:01pm.

10. In the applicant’s visa application, he did not claim that he was seeking medical treatment pursuant to subclause 602.212(2) and did not claim that he sought to donate his organ(s) for transplant in Australia under subclause 602.212(3). The applicant did not indicate that he met any of the alternative criteria under subclauses 602.212(5)-(8). The applicant indicated that he applied for the Medical Treatment (Support Person) visa as a person who would provide support to a person seeking medical treatment in Australia pursuant to subclause 602.212(4). The applicant’s intentions regarding the Medical Treatment (Support Person) visa were based on his wife’s medical treatment. As the applicant’s wife was not the holder of a Subclass 602 Medical Treatment visa at the time of decision, the applicant’s visa was refused. This was explained to the applicant at hearing.

    FINDINGS

11. 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.

12. Relevantly to this matter, cl 602.212(4) relates to the applicant as a support person to his wife who separately sought review of her Subclass 602 Medical Treatment visa, to obtain medical treatment. Broadly speaking, it requires that the applicant seeks to provide emotional and other support to an applicant who satisfies the requirement of a Subclass 602 Medical Treatment visa, and the applicant satisfies the public criterion 4005.

13. The applicant did not claim that he was seeking medical treatment himself or that arrangements have been concluded to carry out such treatment. No medical evidence was provided in support. As such, the applicant cannot meet subclause (2).

14. The applicant did not claim that he sought to donate an organ(s) for transplant in Australia. No medical evidence was provided in support. As such, the applicant cannot meet Subclause (3).

15. The applicant gave evidence that he sought the Medical Treatment visa pursuant to subclause 602.212(4) to give his wife physical, emotional and financial support whilst seeking medical treatment for her arthritis and consulting a gastroenterologist.

16. At the hearing the Tribunal Member asked the primary applicant what things she could not do for herself that she required her husband to do for her. She explained her arthritis symptoms wildly fluctuate, with her being heavily incapacitated some days and heavily reliant on the applicant and having better functionality other days. She has significant mobility issues including lifting her arms and shoulder and difficulty using her hands to grip due to joint pain and fluid retention. Due to being unable to lift her arms above her shoulder, some days she is unable to dress herself and requires the applicant to assist. She also needs assistance with household chores and child caring including clothes washing/hanging, dishwashing, vacuuming, cooking (as she has difficulty gripping kitchen utensils) and driving. Photographic evidence of the applicant’s swollen hands was submitted to the Tribunal which the Tribunal accepts. During the hearing the primary applicant also showed the Tribunal Member her shoulder, arm and hands which looked painful and swollen. The Tribunal Member asked the applicant what care he was proposing to provide his wife that she could not give herself. The applicant provided consistent evidence to the primary applicant.

17. Pursuant to s.359AA of the Act, the Tribunal Member explained to the applicant that although the Tribunal was yet to make a final determination regarding the application for review of Mrs Sharma and maintained an open mind, that if the primary applicant did not satisfy the Subclass 602 visa criteria that it would be a reason or part of the reason for affirming the decision under review, because in order to satisfy 602.212(4), the primary applicant must be the holder of a subclass 602 visa. The Tribunal Member asked if there was anything the applicant wished to say as to how otherwise the applicant could satisfy clause 602.212. The applicant replied in the negative and indicated he understood to satisfy 602.212(4) that his wife must be the holder of a Medical Treatment visa and that his wife’s treatment was the only reason for him to be in Australia. He also did not attempt to embellish his claims and stated he could not satisfy any of the other visa subclauses. As the applicant claims to be a support person for his wife, whose application for a Medical Treatment Subclass 602 visa has been remitted, the applicant meets cl.602.212(4)(a).

18. There is no suggestion that any of the other alternative sub-criteria are relevant in this case.

19. The applicant is not claiming that he is a citizen of Papua New Guinea. Nor does the applicant reside in the Western Province of Papua New Guinea. The Tribunal also has no evidence before it that 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 of Queensland. Therefore subclause (5) is not satisfied.

20. While the applicant is in Australia, he has not turned 50 as he is 37 years of age, being born in 1985. The applicant has not applied for a permanent visa in Australia for which the applicant appears to meet all the criteria other than the public interest criteria related to health. The applicant has had no such visa refused. The Tribunal does not have evidence before it that 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. The applicant therefore does not meet the requirements of subclause (6).

21. There is no evidence of financial hardship. Furthermore, the applicant is not the holder of a subclass 602 visa; or a subclass 675 (Medical Treatment (Short Stay)) visa; or a subclass 685 (Medical Treatment (Long Stay)) visa. The Tribunal does not have information before it that the applicant or a member of his immediate family, is likely to become a charge of the Commonwealth, a State, or Territory or a public authority in Australia. Consequently, the applicant does not meet subclause (7).

22. While the Tribunal appreciates that the applicant’s opportunities for work and to achieve a higher standard of living in Australia might be greater than those the applicant would face in Nepal, of themselves, the Tribunal is not satisfied that such reasons constitute ‘compelling personal reasons’ as many applicants would prefer to live in Australia than in less developed economies. Accordingly, the Tribunal is not satisfied that subclause (8) is met.

23. As the applicant claims to be a support person for his wife, whose application for a Medical Treatment Subclass 602 visa has been remitted on the basis that she meets cl. 602.215, the Tribunal similarly remits the visa application on the basis that the applicant meets cl.602.212(4)(a).

24. 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

25. 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(4)(a) of Schedule 2 to the Regulations.

    Naomi Schmitz
    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).