Somaru (Migration)

Somaru (Migration) [2018] AATA 1581 (6 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Benjamin Somaru
CASE NUMBER:  1710948
DIBP REFERENCE(S):  BCC2017/1539043
MEMBER:Meena Sripathy
DATE:6 March 2018
PLACE OF DECISION:  Sydney
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) for the purposes of cl.602.212(4) of Schedule 2 to the Regulations; and
· cl.602.215 of Schedule 2 to the Regulations.

Statement made on 06 March 2018 at 12:37pm
CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Visa) – Genuine intention to stay temporarily – Applicant meets cl. 602.212(4)(a) for the purposes of cl. 602.212(4)

LEGISLATION
Migration Act 1958, s 65,277, 280
Migration Regulations 1994, Schedule 2, cl 600.212, 602.215

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 May 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 27 April 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).
The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted. The delegate, taking into consideration the applicant’s history of previous Medical Treatment visas, movement records and application for a Contributory Parents visa, formed the view that the applicant was attempting to obtain a further Medical Treatment visa to remain in Australia for a long term period such as maintain ongoing residence in Australia.
The applicant appeared before the Tribunal on 11 January 2018 to give evidence and present arguments. This hearing was combined with that of his wife, Mrs Chandar Kumari Sumaru, who has a separate review application before the same Tribunal (AAT ref. 1710958). The Tribunal also received oral evidence from Mrs Sumaru. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is an 86 year old married Fijian national. At the time of application he sought the visa for a period of 3 months to August 2017 to seek medical treatment. He has three daughters residing in Australia and resides with one of them. He submitted a letter dated 18 April 2017 from his treating doctor, Dr Danish Khan, stating that he is undergoing ongoing medical treatment regarding an abnormality in his cardiac function requiring further investigation and requires a minimum period of 6 months to complete the necessary tests.
In a cover letter submitted with the application the applicant stated that his wife is also receiving medical treatment under the care of a neurosurgeon and has a planned nerve biopsy in May 2017. The applicant states that he has three daughters who are long term citizens of Australia and he has been regularly visiting Australia since the 1970’s, always abiding by visa conditions. He has ample funds to support his stay and medical treatment and refers to bank statements showing over $351,000 and ongoing private health insurance. He seeks the visa extension to enable them to complete all necessary medical investigations so they can return to Fiji with a conclusive diagnosis and treatment management plan. Supporting bank statements show funds amounting to FJD $468,000, receipt for BUPA health Insurance to July 2017 and payslips relating to the applicant’s daughter and her husband’s employment.
Before the Tribunal, in November 2017, Mr Somaru provided a submission setting out his background and circumstances and relevant history of their health circumstances, family and travel history and intentions in making the present application. The following further supporting evidence was also submitted:
·Letter dated 25 October 2017 to Mrs Sumaru regarding an appointment with Dr Andrew Jordon on 17 January 2017.
·Letters dated 28 November 2017 from Jacqueline McMaster of the Brian & Spine Centre Sydney, relating to Mr Somaru and Mrs Sumaru, stating that due to their health conditions it is unsafe for either of them to return unassisted on an international flight to Fiji.
·Letters dated 10 May and 14 December 2017 from Dr Danish Khan relating to each of Mr Somaru and Mrs Sumaru regarding their conditions and treatments and stating neither are fit to travel at this stage.
·Letters dated 30 October and 13 December 2017 from Dr Bassell Hassan relating to Mrs Sumaru indicating she has complex medical care needs and is booked for follow up appointments in February 2018.
·Report by Dr Hany Dimitri dated 6 December 2017 stating Mr Somaru is not in a fit medical state to fly and requires further investigations to determine the cause of his current deterioration and that it is unlikely he will be able to obtain appropriate medical care in Fiji.
On 10 January 2017 the Tribunal received a detailed written submission and copies of medical letters previously provided in support of the application, provided by the applicant’s representative. In respect of these submissions the Tribunal notes that the representative’s registration as a migration agent ceased in September 2017. The Tribunal advised the applicants and representative in December in writing that it has been informed of this by the Office of the Migration Agents Registration Authority and referred the applicant to discuss the matter with his representative as to his ability to continue to provide assistance with the application. The Tribunal was subsequently informed by the representative that his client wishes for him to continue to represent him in the matter. In this regard the Tribunal observes that pursuant to s280 of the Migration Act a person who is not a registered migration agent is prohibited from giving immigration assistance, subject to certain exceptions, including that a lawyer is not prohibited from giving immigration legal assistance.[1] The Tribunal discussed this with the applicant and representative at the hearing. The applicants confirmed they were aware of it and the representative advised he was assisting the couple pro bono on the basis of a close family friendship and had previously discussed this with the MARA.
[1] Immigration legal assistance is defined in s277 of the Act to refer to acting for or representing a person in relation to proceedings before a court and explicitly precludes advice for the purposes of proceedings before a review authority.
The submissions (which the representative and applicant confirmed at hearing were prepared by the representative) provided details of the applicant’s past travel and series of Medical Treatment visas held since January 2013, and addressed the requirements for the grant of the Subclass 602 visa in Schedule 2 of the Regulations, specifically arguing that the applicants meet cl.602.212(2). It was submitted that cl.602.212(6) and 602.212(8) can also be met. The submissions go on to address the case officer’s reasons for decision, and submits that, contrary to the officer’s conclusion on this criterion, the applicants meet cl.602.215 as they have a demonstrated history of complying with their visa conditions; only applying for medical treatment visas for the purposes of obtaining treatment for their symptoms; not abusing the medical treatment visa to prolong their stay in Australia and shows their desire to remain in Fiji when medical treatment is not required. It is further submitted that the exemption to cl.602.215(1) may also apply on the basis that the applicants are unfit to travel, subject to being referred to a MOC, to which they are agreeable.
At the hearing the applicants confirmed that they are still living with their daughter Bernadine and her family. They are supported by her and also use their own funds which they have been accessing from Fiji. The applicant wife has a bank account in Australia in her name into which their Fijian funds are deposited from time to time. In Fiji they still have their house and investment funds. The applicants three children are long term residents of Australia. They have numerous nieces and nephews in Fiji and other extended family in Fiji.
The Tribunal discussed the issues arising in this matter are whether the applicants meet one of the alternative criteria in cl. 602.212 and also whether their intention to only stay temporarily for the purpose for which the visa is granted.
With regard to the medical treatment they are now seeking to undertake, the applicant’s daughter Bernadine informed the Tribunal that she has made appointments for both the applicants on 22 January 2018 with a geriatrician. It is planned that the applicant husband will have a further pacemaker check up in March but an appointment for this has not yet been made. The applicant wife has further upcoming appointments with a rheumatologist, Dr Jordon on 17 January 2018 and nerve conduction tests with Dr Hassan in February 2018. Bernadine told the Tribunal the plan is, following these further appointments, to establish a treatment management plan for the applicants for their future care in Fiji and for them to return to Fiji to attend to their affairs there while they await the outcome of their Contributory Parent visa application. She explained that her parents have been reluctant to come to reside in Australia and they are only now still here due to their ailing health and need for medical treatment. They have no intention of abusing the migration system to prolong their stay unnecessarily. As soon as they are able to return they intend to do so.
With regard to the arrangements for payment of their medical treatment, they have maintained private health insurance with BUPA to date. All specialists appointments are paid for in full prior to the consultation. Evidence of this can be provided. The applicants have sufficient funds to pay for their treatment and their children are willing and able to cover any shortfall.
The Tribunal discussed with the applicants the issue arising from the recent evidence provided from their treating doctors that they are unable to return to Fiji due to their medical conditions. It explained that they do not appear to meet the requirements of cl.602.212(6) because the application for a permanent visa they made (the Contributory Parent) visa was made when they were not in Australia and it has not yet been determined. Therefore, the requirements of cl.602.215 apply and the Tribunal is concerned that if they are unfit to travel they would appear not to have a genuine intention to stay here temporarily. In response the applicants told the Tribunal they have always complied with the conditions of their previous visas and have a genuine intention to depart Australia as soon as their medical appointments are completed and they are cleared for travel. It was reiterated they are only here for the purposes of medical treatment, and have even been unable to attend family events due to ill health. They maintain their intention is to return to Fiji because they still have their affairs there to deal with.
The Tribunal advised the applicants it would allow them until 1 March 2018 to provide further information about the proposed plan for future medical treatment and evidence of the arrangements made for payment of this treatment.
Following the hearing the Tribunal received the following further documents from the applicants:
·Statement dated 21 February 2018 from the applicant stating that he requests to be considered an accompanying support person for his wife in his application for an extension on his medical treatment visa. He submits that he needs to be with her to provide financial as well as emotional and moral support, as her husband of 54 years. He has also been receiving medical attention and they have been facing health and age related challenges together in the recent past and rely on each other for assistance, particularly on the flights home.
·Evidence of receipts for payments of medical expenses for the applicants for various recent and past appointments.
·Various BUPA Benefits Details relating to the applicant and Mrs Sumaru
·Evidence of funds held in each of the applicant’s names in Fiji, and transfers to Australia of funds held in Fiji.
·Westpac statement dated 22 February 2018 showing credit balance, and regular withdrawals of funds and deposits from BUPA
·Receipt for payment of BUPA Health Insurance to May 2018
·Letter from Dr Bassel Hassan relating to Mrs Chandar Sumaru indicating treatment plan to improve her immunotherapy and explore alternative treatments for her polyneuropathy. It is indicated that this level of specialist treatment is not available in Fiji to the best of his knowledge. She has an appointment arranged to see him on 17 April 2018.
·Letter dated 19 February 2018 from Jenny Ip, Retina Associates, regarding Ms Sumaru’s eye condition which may require surgical management.
·Letter dated 13 February 2018 regarding the applicant’s appointment with Dr Dmitri for a defibrillator check and review 7 March 2018.
·Letters dated 22 February 2018 relating to both the applicant and Mrs Sumaru from Dr Ajeet Sidhu, Geriatrician regarding their respective health conditions and plans for further referrals and treatment.
·Past letters dating from 2013-2016 relating to the applicants health conditions in Fiji and travel to Australia for treatment.
·Evidence of vitrectomy (eye) surgery arranged for Mrs Sumaru on 12 March 2018 at Macquarie University Hospital. Letter from Professor Adrian Fung indicates that she will be required to stay in Australia until at least 30 April 2018 for post operative care.
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 visa applicant is whether, at time of decision, the applicant meets one of the alternative criteria in cl.602.212 and 602.215, which requires that the Tribunal be satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
Are the medical treatment requirements met?
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. Relevantly to this matter, cl.602.212(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:
·the arrangements for treatment have been concluded
·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.
At the time of application, the applicant and his wife submitted various letters evidencing appointments planned for them at that time. The Tribunal observes that they initially requested a period from May to August 2017 for the visa. However, after it was refused, they sought review to the Tribunal, and that period has now well and truly passed. When they appeared before the Tribunal at hearing in February 2018, the applicants explained that their health has further deteriorated and they are still in the process of obtaining treatment and medical advice prior to returning home. They have since provided a substantial amount of further evidence to support their claim that they are legitimately here to seek and obtain medical care and have every intention to return home as soon as they are medically able to do so. With regard to future treatment for himself, the only evidence the applicant has provided is an appointment with Dr Dmitri for a defibrillator check and review on 7 March 2018. Given the proximity to that date, the Tribunal finds he will have attended this appointment by the time this decision is processed. He has provided no evidence of any further appointments or planned treatment for himself.
Given the above findings, the requirements in cl.602.212(2) are not met in respect of the applicant.
However, the Tribunal notes his request, in his letter of 21 February 2018, to be considered as an accompanying support person for his wife, Mrs Sumaru who is undertaking medical treatment. In this regard cl.602.212(4) relates to the applicant seeking to give emotional and other support to an applicant in relation to whom the requirements in subclause (2) or (3) are met. Relevantly to this matter, this subclause also requires the person to whom the applicant is to provide support to hold a Subclass 602 visa and the applicant must satisfy PIC 4005.
On the evidence before it, the Tribunal accepts that the applicant seeks to give emotional or other support to an applicant in respect of which it has found (in related case 1710958, constituted by the same Tribunal) the requirements of subclause (2) are met and therefore the applicant meets cl.602.212(4)(a). However, as the applicant’s wife is not yet the holder of a subclass 602 visa and the applicant has not yet undertaken a health assessment to enable a finding in relation to PIC 4005, the Tribunal is unable to make a positive finding in relation to the remaining requirements for this subclause.
Therefore, the Tribunal finds that the applicant meets cl. 602.212(4)(a) for the purposes of cl. 602.212(4) and remits the matter to the Department for further consideration of the remaining requirements.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl.602.212(6).
The Tribunal notes the delegate refused the application on the basis of a finding that the applicant seeks the visa to remain in Australia for a long term basis and does not genuinely intention to visit temporarily, relying on his history of previous Medical Treatment visas since 2013, and application made for a Contributory Parent visa. The Tribunal discussed this at some length with the applicant and his wife at the hearing. It has considered their response that they have always complied with the conditions of their previous visas and have a genuine intention to depart Australia as soon as their medical appointments are completed and they are cleared for travel. They were adamant that they are only here for the purposes of medical treatment, and have had no control over the deterioration of their health in recent times. The explained that due to this they have even been unable to attend family events. They maintain their intention is to return to Fiji because they still have their affairs there to deal with. The Tribunal accepts that the evidence before it, including departmental records relating to past migration history, and evidence submitted by the applicant relating to past travel for medical purposes, supports their claims.

As pointed out to the applicant at the hearing, to the extent that his treating doctors have indicated he may be unfit for travel at this time, he cannot meet the requirements of cl.602.212(6) because the Contributory Parent visa applicant was made when he was not in Australia and has not yet been determined. For this reason, the requirement of cl.602.215 applies in his case.
The Tribunal has carefully considered all of the evidence before it, including the history of past visas and absence of any evidence of non compliance in respect of previous visas held, and the applicant and his wife and witness’ oral evidence, and on the basis of this evidence the Tribunal accepts that the applicant’s intentions to only stay temporarily for the purpose for which the visa is granted is genuine. It also accepts that the applicant and his wife are elderly and the deterioration of their health and medical conditions are not matters within their control. Given these findings, cl.602.215 is met.
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. The Tribunal notes it is a matter for the Department, on remittal, to set the period of the visa, and in doing it may wish to take into consideration the recent evidence of the need for the applicant’s wife’s presence in Australia until 30 April 2018.
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) for the purposes of cl.602.212(4) of Schedule 2 to the Regulations; and
·cl.602.215 of Schedule 2 to the Regulations.
Meena Sripathy
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).

[2018] AATA 1581

6 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction