Pham (Migration)

[2017] AATA 1860

Pham (Migration) [2017] AATA 1860 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Dao Tuyen Vinh Quang Pham

CASE NUMBER:  1615111

DIBP REFERENCE(S):  BCC2016/2595439

MEMBER:Stavros Georgiadis

DATE:5 October 2017

PLACE OF DECISION:  Adelaide

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) and (b) of Schedule 2 to the Regulations.

Statement made on 5 October 2017 at 5:14pm

CATCHWORDS

Migration – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – Support person – Care of sick relatives - Reliant on outcome of other applications

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 602.212, Schedule 8, 8101

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 29 August 2016 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 applied for the visa on 4 August 2016. 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 because the primary applicants for the medical treatment visa (the applicant’s parents) did not meet the criteria for a medical treatment visa as the delegate considered they had been working in breach of a condition on their visa (8101 - not to work in Australia) and therefore, the applicant could not satisfy the criteria as a ‘support person’ for the grant of the visa.

4. The applicant appeared before the Tribunal on 5 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s parents as the primary applicants for the medical treatment visa. The related matters were heard in a combined hearing with this matter. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 criteria of ‘support person’ for the grant of the visa.

   Are the medical treatment requirements met?

7. Clause 602.212, as extracted in the attachment to this decision, requires an 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) relates to the applicant seeking to remain in Australia as a ‘support person’ for his parents who seek to stay for the purposes of obtaining medical treatment (other than for the purpose of surrogate motherhood). Relevantly, cl.602.212(2) in respect of ‘support person’ requires the following to be satisfied as set out under sub-paragraph (4) of cl.602.212 at the end of this decision:

   cl. 602.212 (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.

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

9. The applicant’s evidence is that he resides in the same household as his parents in Ottoway, South Australia and provides emotional and other support to them.  The applicant told the Tribunal that this includes purchasing their various medications and monitoring that they are compliant in taking medications when required as prescribed; shopping for groceries and other essential items for them and himself; driving his parents to medical appointments and other commitments as his father has only a learner’s permit and is not able to drive a motor vehicle without being accompanied by his son or other licensed driver; taking his parents to physiotherapy consultations approximately every fortnight, physiotherapy consultations once per month, and appoints at the Royal Adelaide Hospital as required. The applicant told the Tribunal that he has not been working and has not been studying whist on his last substantive visa and subsequent bridging visa.  He claims he is compliant with the conditions of his visa.

10. On 5 October 2017 the Tribunal made a decision in the related matters 1615106 and 1615109 regarding the applicant’s parents, remitting those applications for Medical Treatment (Visitor) (Class UB) visas for reconsideration, with the direction that those applicants (the applicant’s parents) meet cl.602.215 of Schedule 2 to the Regulations for a Subclass 602 visa.

11. Therefore, the Tribunal is satisfied that the applicant meets the requirements set out in cl.602.212(4)(a) and (b) as a support person for the purposes of the grant of the visa.

12. Accordingly, the requirements in cl.602.212(4)(a) and (b) are met.

13. 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 in respect of the applicant.

    DECISION

14. 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) and (b) of Schedule 2 to the Regulations.

    Stavros Georgiadis
    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).