SHRESTHA (Migration)

[2020] AATA 1939

SHRESTHA (Migration) [2020] AATA 1939 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjay SHRESTHA

CASE NUMBER:  1810114

DIBP REFERENCE(S):  BCC2018/1264565 CLF2018/43604

MEMBER:Louise Nicholls

DATE:19 March 2020

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 19 March 2020 at 4:03pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – requirements as a support person – family member has not been granted the relevant visa – referral for Ministerial Intervention – decision under review affirmed     

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Nepal and is 46 years of age. He and his wife arrived in Australia as the holders of student visas on 19 September 2008.

2. The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 15 March 2018. The applicant applied for the visa on the basis that he was a support person for his daughter who is also an applicant for a medical treatment visa.

3. On 4 April 2018 a delegate of the Minister for Immigration refused to grant the application under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the applicant the visa because the applicant did not meet the requirements for the visa set out in cl.602.212.

4. This is an application for review of that decision and it was lodged on 11 April 2018. The applicant provided a copy of the delegate’s decision record with the application.

5. He provided written submissions and a number of other documents related to his daughter’s application. These included medical reports, financial documents and several media articles.

6. The applicant appeared before the Tribunal on 6 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife who attended the combined hearing of all three applicants for a medical treatment visa, that is, mother, father and daughter.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. At the time of application, 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).

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

10. The issue in this case is whether the applicant meets the requirements in cl.602.212. The applicant is seeking to meet the requirements as a “support person”. Relevantly to this matter cl.602.212(4) provides:

    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.

    Background

11. The applicant and his wife arrived from Nepal on 19 September 2008 as the holder of student visas which ceased on 13 December 2010.

12. The applicant was born in Kathmandu and he is 46 years of age. His parents live in Nepal as well as his 3 brothers and sisters. He attended school in Kathmandu and left in Year 10 to help his father run the family printing business.

13. The applicant’s wife is currently working in an outsourcing company organising contract labour. The applicant is working in a cleaning company.

14. The applicant, his wife and daughter are living in a rented property in Burwood and the applicant attends Burwood Public School.

    Migration and visa history

15. On 30 July 2008 the applicant husband and wife were granted Subclass 572 student visas. They arrived in Australia on 19 September 2008 and their visas ceased on 13 December 2010. They obtained further student visas on 6 January 2011 and those visas ceased on 4 March 2013.

16. The applicant obtained a further student visa on 22 March 2013, the applicant’s daughter was included as a dependent and those visas ceased on 2 July 2014. During that period the applicant, his wife and daughter travelled to Nepal for a one month family visit.

17. The applicant, his wife and daughter have held a series of bridging visas since 17 June 2014.

18. The applicant’s wife gave evidence that she initially undertook a course in Community Welfare which she completed in 2014. She then commenced a course in Business and Advanced Management.

19. The applicant’s wife told the Tribunal she applied for a sponsored regional visa however the nomination was rejected. She completed her Business and Management course in 2015 and her subsequent application for a temporary business visa was refused in about 2017 because the nominated business went into liquidation.

20. Departmental records show that the applicant’s wife applied for temporary business visas on 21 October 2013, 19 March 2015 and 2 March 2017. However the applications were refused. The business sponsors were Age Care Australia Bundaberg Lodge Pty Ltd and Innovative Associates Group Pty Ltd.

    Does the applicant meet the requirements for a support person (or the alternative requirements)?

21. 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. To meet the requirements as a support person the applicant must meet the requirements of cl.602.212(4) as set out above.

22. The applicant is seeking to stay in Australia to provide support to his daughter in relation to her medical treatment. The applicant’s daughter is nine years of age and was born in Australia and is currently attending her local primary school.

23. The documents provided to the Tribunal indicate and the Tribunal accepts that the applicant’s daughter had significant medical problems following her premature birth in 2010 and that she currently has wheezing when she has any viral or bacterial illness. She appears to be sensitive to winter illnesses and was more recently affected by bushfire smoke.

24. The medical reports indicate that the applicant’s daughter was born after 26 weeks gestation with low birth weight and chronic lung disease. She spent a long period in neo natal wards before she was discharged from hospital. She was discharged with an oxygen mask, the use of which continued for a few years, and has been regularly monitored for sleep assessment and lung function testing.

25. The most recent medical report from her specialist paediatrician indicated that on examination on 22 January 2020 the applicant was well with no effort at breathing and no chest deformity. She had good bilateral air entry without wheeze. He noted that she had previously suffered lung disease and is susceptible to wheezy bronchitis triggered by viral infections. He advised she should have yearly flu vaccinations. He suggested she be seen by a ENT surgeon within twelve months to investigate her upper airways.

26. However, the issue for the Tribunal is whether the applicant meets the requirements of cl.602.212(4). There is no evidence that the applicant’s daughter has been granted a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or 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. Accordingly the applicant does not meet the requirements of cl.602.212 (4).

27. The Tribunal has also considered the alternative sub criteria in cl.602.212.

    ·There is no evidence or claim that the applicant is seeking to obtain medical treatment for himself or that arrangements have been concluded to carry out such treatment: cl.602.212(2).

    ·There is no evidence or claim that the applicant seeks to donate an organ for transplant in Australia: cl.602.212(3).

    ·There is no evidence or claim that the applicant is a citizen of Papua New Guinea: cl.602.212(5).

    ·There is no evidence that the applicant has turned 50 years and is medically unfit to depart Australia: cl.602.212(6).

    ·There is no evidence that the applicant meets the requirements in cl.602.212 (7). He does not hold either a Subclass 602 visa; or a Subclass 675 (Medical Treatment (Short Stay)) visa; or a Subclass 685 (Medical Treatment (Long Stay)) visa.

    ·There is no evidence that the applicant meets the requirements in cl.602.212 (8). He does not meet the requirements in either cl.602.212 (2)(a)-(c), or(3)(a)-(b), or (4)(a)-(b), or (5), or (6) (a)–(b) and thus cannot meet the requirements of this sub paragraph.

28. The applicant has provided submissions and a number of documents which address the issues in his daughter’s application for a medical treatment visa. The submissions and documents provide context to the applicant’s claims and are relevant to a number of issues in his daughter’s medical treatment visa. However, they do not address the issue in the applicant’s case, which is, whether he meets the requirements of “support person” in cl.602.212(4) or the alternative sub paragraphs. 

29. Given the above findings, the requirements in cl.602.212(2) to (8) are not met.

30. 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.

    Referral for Ministerial Intervention

31. Having regard to the applicant’s circumstances, in particular the age of the applicant’s daughter, the length of time her daughter has lived in Australia since her birth, her daughter’s medical condition and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention together with the applicant’s daughter and wife.

    DECISION

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

    Louise Nicholls
    Senior 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).