Sungroya (Migration)

Sungroya (Migration) [2020] AATA 1068 (14 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Master Arjan Sungroya
CASE NUMBER:  1928500
DIBP REFERENCE(S):  BCC 2019/4632357
MEMBER:Louise Nicholls
DATE:14 April 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 14 April 2020 at 3:47pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant’s father is receiving medical treatment – applicant is seeking to meet the requirements as a “support person”-decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 602.212

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of India and is six years old. He was born in India and came to Australia with his mother in April 2014. The applicant applied for a Medical Treatment (Visitor) (Class UB) visa on 16 September 2019. His parents also applied for medical treatment visas in September 2019.
Several documents were provided with the application including;
·     Copy of the biodata page of the applicant’s Indian passport issued on 25 September 2018.
·     Copy of the biodata pages of his parents’ passports.
·     Form 1507 (Evidence of intended medical treatment) completed by Dr Mark Smith, Westmead Hospital on 26 August 2019. The Form 1507 relates to the medical treatment proposed for the applicant’s father.
·     Copy of a letter from Westmead Hospital dated 16 August 2019 advising that the applicant’s father has been placed on an elective surgery waiting list.
·     Letter dated 2 September 2019 from a friend of the applicant’s parents, Jitender Kumar, who stated he was giving the applicant’s father the sum of $15000 to cover the costs of his surgery as well as copies of Mr Kumar’s bank statements.
On 24 September 2019 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 visa because the delegate was not satisfied that the applicant was providing support to the holder of a Medical Treatment visa or alternatively met any of the other requirements of cl.602.212.
This is an application for review of that decision, and it was lodged on 9 October 2019. A copy of the delegate’s decision record was provided with the application.
The Tribunal conducted a combined hearing of the applications of the applicant and his parents on 12 March 2020. The applicant’s mother had previously made a request in writing for a combined hearing and asked that the Tribunal take evidence from her husband on her behalf and that of the applicant. The applicant’s husband gave evidence and presented evidence and arguments for himself, his wife and the applicant.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION
At the time of the 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).
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 meets the requirements in cl.602.212 which is an essential requirement for the visa. 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
The applicant’s father gave evidence at a combined hearing of the applications of the applicant, the applicant’s mother and himself. All applicants have applied for medical treatment visas and the applicant’s father gave evidence in his own matter as well as evidence on behalf of the applicant and their son.
The applicant’s parents were born and grew up in Haryana State. They married in 2012 and the applicant was born in Haryana in 2013.
The applicant’s father is 40 years of age, the applicant’s mother is 29 years old and the applicant is six years old. The applicant came to Australia with his mother to join his father who was the holder of a temporary residence visa. He and his mother have travelled to India for a number of visits during the period of their residence in Australia.
The applicant’s father first arrived in Australia as a student visa holder in 2007. He initially enrolled in a Master of Business Administration Course(MBA) but after a year he transferred to a Certificate III course in Patisserie. He finished his patisserie course and then completed a one-year Diploma in Business from Strathfield College. He has held a number of temporary visas and worked in the hospitality industry for a number of years.
The applicant’s father applied for a permanent work visa in 2018 but his application was refused due to problems with the employer nomination.
In about 2017 the applicant’s father found out he had stones in his salivary gland. He was given antibiotics and one stone passed but one of the other stones increased in size and he was advised to have surgery to remove the stone. He decided to go ahead with the surgery as he had been getting medical treatment in Australia for 2-3 years and he trusted his Australian doctors. He told the Tribunal he was not confident with Indian doctors.
The applicant’s father gave evidence that his family are in India. He stated the applicant was in Grade 1 in a local primary school and the applicant’s mother was engaged in the care of the applicant and was not working. He could not point to any arrangements that he had made for his return to India. His lease was not a fixed term and he could leave with two weeks’ notice, he had an old car which could be sold easily. He claimed he owned a farm and a house in India and did not need a job when he returned. He had saved a little bit of money.
Does the applicant meet the requirements for a support person (or the alternative requirements)?
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.
The applicant is six years old and did not attend a hearing. His mother provided written consent for her husband to give evidence on the applicant’s behalf at a Tribunal hearing.
The applicant’s husband claimed that he needs medical treatment and was on a waiting list for elective surgery. He claimed that the applicant’s mother and the applicant would support him during and after the medical treatment.
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 father has been granted a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met. There is no evidence that he has been granted a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) are met 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).
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.
A number of documents have been provided which address the issues in the applicant’s father’s application for a medical treatment visa. The documents provide context to the applicant’s claims and may be relevant to a number of issues in his father’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.
Given the above findings, the requirements in cl.602.212(2) to (8) are not met.
Conclusion
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
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).

[2020] AATA 1068

14 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness