Rokotakala (Migration)

[2023] AATA 139

Rokotakala (Migration) [2023] AATA 139 (17 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Semi Ratudradra Rokotakala

REPRESENTATIVE:  Miss Vanessa De Pretis (MARN: 1388116)

CASE NUMBER:  2107744

HOME AFFAIRS REFERENCE(S):          BCC2021/1091607

MEMBER:Jane Marquard

DATE:17 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 17 January 2023 at 1:59pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – member of the family unit – emotional and other support to a visa holder – compassionate or compelling circumstances – family medical condition – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351, 360
Migration Regulations 1994, Schedule 2, cl 602.212, 602.216

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 25 May 2021 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) (Support Person) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO REVIEW

2. The applicant is a 17-year-old boy from Fiji. He arrived in Australia on a Visitor (Subclass 600) visa in 2018 along with his parents, Luisa, and father, Jovesa.

3. He applied for the visa the subject of this review on visa on 17 May 2021. His mother applied for a Medical Treatment (Visitor) (Class UB) visa, and his father applied for a visa as a support person for his wife at the same time.

4. In the Form 1507 ‘Evidence of Intended Medical Treatment’ submitted with the application for his mother’s visa to the Department of Home Affairs (the Department), his mother stated that she has metastatic triple positive breast cancer. She said that she was diagnosed with incurable metastatic breast cancer in Australia on 3 May 2019 and had been placed on a treatment plan to prolong survival and control cancer for an estimated few years. She said that she was being treated at the St George’s Cancer Clinic. She stated that she estimated that if she returned to Fiji the approximate cost would be $10 000 per month. She said in her Form 1507 that she required treatment from 17 May 2021 to 31 December 2025 and was under the care of Dr Jodi Lynch.

5. A letter dated 17 August 2020 was provided from Dr Lee, an advanced trainee on behalf of Dr Lynch. Dr Lee confirmed that the applicant’s mother has a diagnosis of incurable metastatic breast cancer. Dr Lee noted that the applicant’s mother was being cared for by her husband and has a school aged son (the applicant). Dr Lee confirmed that the applicant’s mother was taking a number of types of medication to prolong survival and that she would not be able to access or afford the treatment in Fiji. Dr Lee reported that metastatic breast cancer has a poor prognosis of a period of months.

6. A letter dated 3 February 2021 from Dr Lynch at the Cancer Care Centre outlined his mother, Luisa’s diagnosis and treatment and reported that the regimen of treatment was ensuring that her disease remained stable. Dr Lynch implored the Department to carefully consider her situation and act compassionately.

7. The delegate of the Department refused to grant the applicant the visa because the delegate was not satisfied that the applicant met cl 602.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) as he did not meet cl 602.212(4). This clause requires that the applicant seeks to give emotional and other support to an applicant who holds a subclass 602 visa.

8. The delegate refused to grant the applicant the visa because Luisa, his mother, whom he intended to support, was refused, and does not hold a Medical Treatment (Subclass 602) visa.

   TRIBUNAL FINDINGS - SUMMARY

9. No hearing was necessary in this matter pursuant to s360(2)(b) of the Act, as on 15 November 2022 the applicant’s representative advised the Tribunal that he waived the right to a hearing.

10. For the following reasons, the Tribunal has decided that the decision under review should be affirmed. The Tribunal refers the matter to the Minister for consideration pursuant to s 351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant. The Tribunal refers the matter to the Minister on the basis of the unique and exceptional circumstances of the case, in particular on compassionate grounds.

    RELEVANT LAW

11. At the time the applicant applied for the visa, 17 May 2021, Class UB contained one subclass, Subclass 602 (Medical Treatment). The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

12. The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Regulations.

13. The key issue in this case is whether the applicant meets cl 602.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This clause requires that an applicant meet one of subclauses (2) to (8). Relevantly to the applicant, as a support person he was required to meet subclause 602.212(4) which is set out below:

    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.

    FINDINGS

    Does the applicant meet Subclause 602.212(4)?

14. Subclause 602.212(4) requires that the applicant seek to give emotional and other support to an applicant who holds a Subclass 602 visa. In this case, the applicant seeks to give emotional and other support to his mother, Luisa, who has applied for a Subclause 602 visa.

15. In a separate decision, the Tribunal has affirmed the decision of the Department to refuse her a Medical Treatment (Subclause 602) visa, as the Tribunal was not satisfied that Luisa has adequate means to support herself or access to adequate means to support herself during her intended stay in Australia, as required by cl 602.216 of Schedule 2 to the Regulations.

16. The Tribunal is not satisfied therefore that the applicant meets subclause 602.212(4) as his mother, Luisa, does not hold a Subclass 602 visa.

17. No other subclause in cl 602.212 is relevant.

18. Given the above findings, cl 602.212 is not met.

    Referral for ministerial intervention

19. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

20. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and respectfully refers the matter to the Department for ministerial consideration pursuant to these provisions.

21. The Tribunal considers that there are unique and exceptional circumstances applicable to this case. In particular there are compassionate circumstances regarding the health of the applicant’s mother that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to her, and would have a devastating impact on the school-aged applicant and his father.

22. As set out in the medical reports referred to earlier, the applicant’s mother, Luisa has aggressive Stage IV breast cancer. The family had arrived in Australia as visitors in 2018 and she became ill and was diagnosed in Australia in 2019. The cancer is incurable and she had been placed on a treatment plan to prolong survival and control cancer for what is estimated to be a few years. Her husband and the applicant are in Australia with her. The applicant has been attending school in Australia since 2018. His father has worked full-time in order to support the family as best he can. A number of charities and the church have also assisted. One of Luisa’s treating doctors, Dr Lynch, from Cancer Care Centre has implored the Minister to treat her case compassionately as if she returned to Fiji, she would be unlikely to be able to access or afford the treatment which would likely result in her death. The medical practitioners have emphasised that under her current treatment regime her condition is stable. The medical practitioners have emphasised that her treatment plan would not be readily available in Fiji, as access to ongoing immunotherapy and maintenance treatment required for metastatic breast cancer is not common or easily accessible in Fiji. Both her aunt and niece were diagnosed with late-stage breast cancer and passed away after not being able to receive the standard 6-cycle chemotherapy or immunotherapy.

23. It was also submitted by the representative that there are circumstances not anticipated by relevant legislation or unintended consequences, or that the application of the legislation leads to unfair or unreasonable results. These are that Luisa developed the cancer while visiting Australia, the costs of cancer treatment are prohibitively high, but there is no other visa which she can apply for in regard to medical treatment. As the visa is temporary, she cannot access Medicare, and cannot work. However the alternative to getting the treatment in Australia is imminent mortality. It was submitted that vulnerable people such as Luisa and her family are therefore ineligible for a visa in Australia.

24. It appears from the evidence that the applicant and his family are active members of their church community and are well-loved and respected. They are hardworking and contributing to medical costs as best they can. The church and other family members have pledged ongoing emotional, practical and financial support. Notwithstanding her illness, Luisa works between treatments as a Sleepover Support Care Worker providing companionship and light household duties for vulnerable and disabled persons. Luisa’s sister told the Tribunal that they are active and committed Christians and she believes that they would contribute to the Australian community and be good Australian citizens. Joseva’s brother has attested to their good character and kind nature, helping others even when faced with their own challenges. Celebration Church International noted that the family had been part of the congregation for three years. A reference letter stated that they are a wonderful family who believe in helping and caring for others, and that the applicant is a fine young man with a promising future. The medical practitioners have implored the Australian government to ensure that Luisa is able to continue treatment in Australia.

    Concluding paragraphs

25. 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.

26. The Tribunal refers the matter to the Minister for consideration of his discretion under s351 of the Act.

    DECISION

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

    Jane Marquard
    Member