Ng (Migration)

Ng (Migration) [2022] AATA 2643 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Boon Ping Ng
CASE NUMBER:  2012538
HOME AFFAIRS REFERENCE:               BCC2020/1829383
MEMBER:Rosa Gagliardi
DATE:7 April 2022
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 7 April 2022 at 11:32am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant was not considered to be a support person to someone who held a Medical Treatment visa – applicant was no longer in a relationship with the person he had purported to want to support, being his wife – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

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 16 July 2020 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 applied for the visa on 30 June 2020. 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).
The applicant indicated he had applied for a Medical Treatment (Support Person) visa subclass 602 as a support person to a person seeking medical treatment in Australia. At the time of application he advanced that he met the requirements of subclause 602.212(2)(4). The delegate refused to grant the applicant the visa because the person he intended to provide support to was refused a Medical Treatment visa (subclass 602) and did not hold such a visa.
The applicant appeared before the Tribunal on 5 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
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 meets cl.602.212 on the basis that he is a support person to someone who holds a Medical Treatment visa subclass 602.
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 to this matter, subclause 602.212(2)(4) sets out the requirements on the basis that an applicant is a support person:
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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
At the time of application, the applicant had claimed that he was his then wife’s (Mrs Seok Ley Lim) support person who had applied for a Medical Treatment (Visitor) visa. The Department refused Mrs Seok Ley Lim’s visa and therefore the applicant was not considered to be a support person to someone who held a Medical Treatment visa. On 21 March 2022, the Tribunal affirmed the refusal on review (Decision no: 2012535).
The applicant’s migration agent wrote to the Tribunal prior to hearing to advise she would no longer be representing the applicant because he and Mrs Seok Ley Lim had separated, and the agent considered she would have a conflict of interest in also representing the applicant.
At hearing the Tribunal put to the applicant under s.359AA of the Migration Act the adverse information that it had come to know that he was no longer in a relationship with the person he had purported to want to support, being his wife. The Tribunal explained to the applicant that this information was relevant to the review because it would appear that the applicant was no longer providing any support to his estranged wife. The Tribunal stated that if it relied on this information it would find that the applicant did not meet the requirements of cl.602.212(2)(4), and therefore did not meet the requirements of cl.602.212(2) as a whole.
The applicant sought a break to then respond. He stated that he did not consider it was his role to provide assistance to his wife, given they were no longer together.
The applicant also sought advice about what would happen were the visa refused, and the Tribunal encouraged the applicant to engage with the Department of Home Affairs as the Tribunal could not give him advice about such matters.
The Tribunal also put to the applicant under s.359AA of the Act that on 21 March 2022 the Tribunal had affirmed the decision to refuse his wife a subclass 602 visa. This matter was relevant because it was a requirement that he be a support person to someone who held a subclass 602 visa. The Tribunal further explained that if it relied on this information it would find that the applicant did not meet the requirements of cl.602.212(2).
The applicant did not attempt to embellish his claims and stated that he had nothing further to add.
The Tribunal also discussed with the applicant whether he was arguing that he met any of the alternative criteria under cl.602.212(2). The Tribunal inquired, for example, whether the applicant was seeking medical treatment for himself. The applicant stated that he was not. He appeared to accept that it would be difficult to argue that he could meet any of the alternative criteria.
The Tribunal appreciates the applicant’s candid evidence at hearing and the fact that he did not appear to make an attempt to pursue the visa as a means to maintain an ongoing presence in Australia.
Conclusion
On the basis of the applicant’s circumstances, and given the above findings, the requirements in cl 602.212(2) are not met.
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
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Rosa Gagliardi
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).

[2022] AATA 2643

7 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction