Porncharoen (Migration)

[2019] AATA 1797

Porncharoen (Migration) [2019] AATA 1797 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Waraporn Porncharoen

CASE NUMBER:  1807334

DIBP REFERENCE(S):  BCC2017/4854524

MEMBER:Mary Urquhart

DATE:17 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 17 April 2019 at 9:28am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor)(Class UB) visa – Subclass 602 (Medical Treatment) – support person for partner – partner does not hold Medical Treatment visa – not an organ donor – not a Papua New Guinea citizen – not unfit to depart – no evidence of financial hardship – no compelling reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 602.212

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 27 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).

2. The applicant applied for the visa on 15 December 2017. 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 criteria for the grant of a Medical Treatment (Visitor) visa in cl. 602.212 in Schedule 2 to the Regulations are not met by the applicant.

4. In accordance with s.360 (1) of the Act the applicant was invited to a hearing on 11 April 2019.

5. The applicant was represented in relation to the review by her registered migration agent appointed 9 April 2019.

6. On 10 April 2019 the Tribunal received a submission on behalf of the applicant prepared by her representative in response to the hearing invitation. It was submitted that the applicant “is not able to assist the Tribunal due to her cognitive impairment, which has previously prevented her from studying or working. Additionally, her attendance could be disadvantageous to her case and would not be in the interest of justice. She has problems with articulation and speaking”.

7. The submission indicated that the applicant Ms Waraporn Porncharoen and her partner Ms Napaporn Jittangtrong will not be able to attend the hearings of their respective reviews on 10 and 11 April 2019. No further reasons for the non-attendance of the applicant were provided. The submission indicated an attached written submission should in the circumstances be considered. The submission indicated that the applicant applies as a support person only to Ms Napaporn Jittangtrong and that she is the provider of care to Ms Napaporn Jittangtrong.

8. The Tribunal has decided to proceed to determine the application on the basis of the written material as requested without the applicant appearing before under s.360(2)(b) of the Act noting in this circumstance s.360(3) now applies and the applicant is not entitled to appear before the Tribunal.

9. For the following reasons, the Tribunal has decided that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes, including support persons.

11. The applicant, a national of Thailand born 10 September 1984. According to a Relationship Certificate registered 28 March 2012 Victoria Registration No. 98/2012 she is in a de facto relationship with Ms Napaporn Jittangtrong who applied for a Medical Treatment visa on 15 December 2017 (Tribunal application 1807329).

12. The issue in this case is whether the applicant, a support person, meets the requirements that are specified in the Migration Act and the Migration Regulations for a Medical Treatment (Support Person) visa, cl.602.212.

13. A valid application for a Medical Treatment (Support Person) visa has been made by the applicant.

14. The applicant's visa status and related requirements

15. Under the migration law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations

    602.212

16. Cl.602.212 of schedule 2 to the Migration Regulations requires all of the following criteria to be met:

    (1) The requirements in one of sub clauses (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.

17. The applicant has not applied as a person seeking medical treatment, accordingly cl.602.212 (1) and (2) are not met.

    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 sub clause (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.

18. The applicant has not claimed that she is donating an organ for transplant and there is no evidence to support such a claim. Accordingly cl.602.212 (3) is not met.

    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) are met;

    (c) the applicant satisfies public interest criterion 4005.

19. The applicant’s partner Ms Napaporn Jittangtrong, who she wishes to support, does not hold a Medical Treatment visa and has not, met requirements for the grant of a Medical Treatment visa. Accordingly the applicant does not satisfy the requirements of cl.602.212 (4).

    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.

20. There is no evidence that the applicant is a citizen of Papua New Guinea. Accordingly she does not meet the requirements of cl. 602.212(5).

    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 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.

21. The evidence is that the applicant was born 10 September 1984 and accordingly has not yet turned 50 and she has not been assessed as unfit to depart Australia by a Medical Officer of the Commonwealth. She does not satisfy cl.602.212 (6).

    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 sub clause (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.

22. As indicated above, the applicant does not hold a Medical treatment visa and has not applied under financial hardship grounds. Accordingly she does not satisfy cl.602.212 (7).

    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 sub clause (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).

23. The applicant does not meet the essential requirements of cl.602. 212. As clause 602.212 in Schedule 2 to the Regulations is not met by the applicant, criteria for the grant of a Medical Treatment (Visitor) visa are not met by the applicant.

24. 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

25. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

    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).