Sfika (Migration)

[2023] AATA 1003

Sfika (Migration) [2023] AATA 1003 (13 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Maria Angeliki Sfika

REPRESENTATIVE:  Mr Harold Acar (MARN: 1568676)

CASE NUMBER:  2207266

HOME AFFAIRS REFERENCE(S):          BCC2022/1210158

MEMBER:Naomi Schmitz

DATE:13 April 2023

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 13 April 2023 at 4:26pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – support person for family member – applicant’s mother refused a Medical Treatment visa – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 359, 363, 379
Migration Regulations 1994, Schedule 2, cl 602.212

CASES

Hasran v MIAC [2010] FCAFC 40     

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 27 April 2022 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 7 April 2022. 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 18 May 2022 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.

5. The applicant is currently aged 11 years. As she is a minor, the Tribunal communicated with her father and her appointed representative.

6. On 23 March 2023, the Tribunal invited the applicant under s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review to refuse to grant the applicant a Medical Treatment visa. The particulars of the information included:

   In your visa application that you made on 7 April 2022 you indicated that you sought the Medical Treatment visa pursuant to clause 602.212(4) to give your mother (the primary applicant), Ms Eleftheria Vavla, emotional and other support.

   On 22 March 2023 the Tribunal affirmed the decision to refuse the primary applicant a Medical Treatment visa as she did not satisfy the Subclass 602 visa criteria.

   This information is relevant to the review because in order to satisfy clause 602.212(4), the primary applicant must be the holder of a Subclass 602 visa. As the primary applicant is not the holder of a Subclass 602 visa you cannot satisfy clause 602.212(4). 

7. The Tribunal also on 23 March 2023 and in the same letter invited the applicant under s.359(2) of the Act to provide the Tribunal with information to address the following:

   You are invited to provide information that demonstrates that you meet the requirements of one of the subclauses in clause 602.212(2) to (8) in Schedule 2 to the Migration Regulations 1994 at the time of the Tribunal’s decision.

   A copy of clause 602.212 is set out in the attachment to this letter.

8. The invitation to comment on or respond to information and request for information advised that if the applicant did not comment on or respond to the information put to her under s.359A and did not provide information pursuant to s.359(2) in writing by 6 April 2023, the applicant would lose any entitlement she might have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal would make a decision on the information it had without taking any further steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act.

9. On 27 March 2023, the Tribunal invited the applicant under s.360(1) of the Act to appear at a Tribunal hearing by video-link commencing at 9:00 am (NSW time) on 12 April 2023 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 and was unable to make a decision favourable to the applicant.

10. On 6 April 2023, the applicant’s father requested that the hearing be adjourned for four weeks to allow time to consult with their representative and prepare their case.

11. On 6 April 2023, the Tribunal advised that the Tribunal Member had considered the request carefully, however the application to postpone the hearing was refused. The Tribunal Member considered that as the applicant had had approximately one year since the visa refusal on 27 April 2022, and making the application for review on 18 May 2022, the applicant had had ample time and opportunity to prepare her case before the Tribunal. The Tribunal Member also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[1]

    [1] s.2A of the Administrative Appeals Tribunal Act 1975 (Cth)

12. The applicant did not comment on or respond to information and provide information pursuant to s.359A and s.359(2) of the Act. As the applicant did not comment on or respond to information and did not provide information pursuant to s.359A and s.359(2) of the Act, the applicant no longer had a right to appear before the Tribunal pursuant to s.360(3). The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear.[2]

    [2] Hasran v MIAC [2010] FCAFC 40

13. On 11 April 2023, the hearing scheduled for 12 April 2023 was cancelled and the applicant was notified of the cancellation of the hearing by email. The letter advised the applicant that the Tribunal Member would proceed to make a decision on the information before the Tribunal, including information received up until the time of decision.

14. Subsequently on 11 April 2023, the representative advised that the applicant and her father understood the legal status of their application. Attached was an email from the applicant’s father conceding they could not meet the visa criteria. The applicant’s father requested that the Tribunal Member consider the matter for Ministerial Intervention.

15. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), using the contact information provided by the applicant. In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal.[3]

    [3] s.359C(1) and s.359C(2) [Part 5] of the Migration Act 1958 (Cth)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 her mother, or someone else, who has a Medical Treatment visa, or whether the applicant herself requires a Medical Treatment visa.

18. This decision should be read in conjunction with case number 2207265 in respect of the primary applicant, the applicant’s mother, Mrs Eleftheria Vavla. In that case the Tribunal affirmed the decision on review on 22 March 2023 at 1:13pm.

19. In the applicant’s visa application, she did not allege that she was seeking medical treatment pursuant to subclause 602.212(2) and did not allege that she sought to donate her organ(s) for transplant in Australia under subclause 602.212(3). The applicant indicated that she 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 her mother’s medical treatment. As the applicant’s mother was not the holder of a Subclass 602 Medical Treatment visa at the time of the decision, the applicant’s visa was refused.

    FINDINGS

20. 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.

21. Relevantly to this matter, cl 602.212(4) relates to the applicant as a support person to her mother who separately sought review of the refusal of her application for a 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 interest criterion 4005.

22. The applicant did not claim that she was seeking medical treatment herself 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).

23. The applicant did not claim that she 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).

24. The applicant sought the Medical Treatment visa pursuant to clause 602.212(4) to give her mother emotional and other support. As outlined in the s.359A invitation in [6] above, as the Tribunal affirmed the decision to refuse the primary applicant’s Medical Treatment visa and the primary applicant was not the holder of a subclass 602 visa, this would be a reason or a part of the reason for affirming the decision under review, because in order to satisfy cl 602.212(4), the primary applicant must be the holder of a subclass 602 visa. The applicant accepts that her mother’s Medical Treatment visa has been refused and understands she is not the holder of such a visa. The applicant (and her father on her behalf) further understands to satisfy cl 602.212(4) that her mother must be the holder of a Medical Treatment visa.[4] As the person the applicant seeks to support does not hold a Medical Treatment visa, the applicant does not meet subclause (4). The Tribunal does not have any evidence that any other person requires support.

    [4] Email correspondence from representative and applicant dated 11 April 2023

25. The applicant is not claiming that she is a citizen of Papua New Guinea. Nor does the applicant reside in the Western Province of Papua New Guinea.[5] 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.

    [5] Department file: BCC20221210158 – Visa application - The applicant resides in New South Wales and is a citizen of Greece.

26. While the applicant is in Australia, she has not turned 50 as she is 11 years of age, being born in May 2011. There is no information before the Tribunal that the applicant has applied for a permanent visa in Australia which was 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).

27. The applicant did not submit any 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 her 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).

28. While the Tribunal appreciates that the applicant’s opportunities for education, work and to achieve a higher standard of living in Australia might be greater than those the applicant would face in Greece, 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.

29. Given the above findings, the requirements in cl 602.212(2)-(8) 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.

    MINISTERIAL INTERVENTION

30. Ministerial Intervention allows the Tribunal to refer a case to the Department for Ministerial Intervention 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 visa applicant if the Minister thinks it is in the public interest to do so.

31. A review Tribunal may refer a case to the Department if the Member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the Ministerial Intervention guidelines. The Department will assess the circumstances of the case and may refer the case to the Minister where it meets the Minister’s guidelines for referral. If the Department assesses that the case does not meet the Minister’s guidelines for referral, the Department will finalise the case according to these guidelines.

32. The Tribunal has considered the evidence of the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal is satisfied that the circumstances in this case are not unique or exceptional. Whilst the Tribunal appreciates the current difficult circumstances of the applicant, this is not sufficient grounds to seek intervention at Ministerial level. Further, there is no independent, corroborative evidence before the Tribunal to make the recommendation. 

33. The Tribunal does not support the Request for Ministerial Intervention. The Tribunal notes that the applicant can still make a request directly to the Minister with the assistance of her representative.

    DECISION

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

    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).