TONG (Migration)

[2019] AATA 202

TONG (Migration) [2019] AATA 202 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ZEN HONG TONG

CASE NUMBER:  1732422

DIBP REFERENCE(S):  BCC2017/4618804

MEMBER:Meena Sripathy

DATE:24 January 2019

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 24 January 2019 at 11:24am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – provide emotional support to mother – Tribunal affirms mother’s visa – decision under review affirmed
PRACTICE AND PROCEDURE – combined hearing with mother

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 600.212 , 600.215 Schedule 4 PIC 4005

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 Immigration on 8 December 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 November 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).

3. The delegate refused to grant the applicant the visa because the applicant did not meet any of the alternative criteria in cl.602.212.

4. The applicant appeared before the Tribunal on 30 November 2018 to give evidence and present arguments. This hearing was combined with that of his mother, Ms Bee Guek Kang, who has a separate review application before the same Tribunal (AAT ref. 1732421).  The Tribunal also received oral evidence from Ms Kang.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is a 25 year old man of Malaysian nationality. He is the son of Ms Bee Guek Kang.  At the time of application he indicated that he sought the visa on the basis of being a person who will accompany a person who will undergo medical treatment, Ms Kang. The same documents were attached as were provided with Ms Kang’s application (Form 1507 dated 22 November 2017 from Dr Timothy Siu indicating that the applicant seeks to undertake treatment for carpel tunnel syndrome and is ‘awaiting surgery’; 2 reports from Prof G Gumley provided in the context of an insurance claim; correspondence from applicant’s lawyers and NRMA relating to the insurance claim and proposed time frame for surgery and treatment to be undertaken).  The applicant’s representative confirmed the applicant sought to satisfy cl.602.212(4) as the support person for his mother.  

8. The delegate was not satisfied that the applicant met any of the alternative criteria under cl.602.212.

9. Before the Tribunal the applicant’s representative provided a submission and supporting documents on 23 November 2018.  The submission indicated that the applicant seeks to meet cl.602.212(4) to provide emotional support and daily care to his mother, who is currently undergoing rehabilitation after surgery to ensure full recovery before she has a further medico legal assessment to understand the extent of her injury and disability.  This process is anticipated to take 3-6 months.  The representative stated the applicant’s mother seeks the visa to finalise her insurance claim and then they will return home.  It is submitted that the issues that led the applicants to apply for a change of status visa in 2016 has now been resolved and the applicants now wish to return to Malaysia.

10. At the hearing the applicant’s mother gave evidence relevant to the issues arising in her review.  Her evidence is summarised in the decision record for her matter (AAT ref. 1732421). 

11. The applicant was asked if he wished to say anything further in support of his application or his mother’s.  He stated that he observes she still has some problems holding or carrying heavy items and he is worried about her.  He had no further comment.

12. The representative submitted, in respect of the applicant’s mother’s case, that physiotherapy is treatment for the purposes of cl. 602.212(2) and she continues to receive this.  Evidence from the personal injury lawyer indicates this will take some 3-6 months.  She requested  time to submit further evidence in support of the ongoing treatment. 

13. On 14 December 2018 the Tribunal received a submission from the applicants’ representative and letters from the applicant’s mother’s physiotherapist and personal injury lawyer in support of her claims. The representative’s submission includes information to clarify the applicant’s response given at hearing about the whereabouts of her daughters.  It states that in the past year her daughters have separately visited Australia and currently are both studying in Australia on student visas. 

    CONSIDERATION

14. 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 cl.602.212(4) which requires the applicant to seek to give emotional or other support in relation to a person who meets the requirements of subclause (2) (medical treatment) or (3) (organ donor).  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.

15. The Tribunal accepts that the applicant applied for the visa as a support person for his mother, who lodged an application for a medical treatment visa on the basis of medical treatment.  However, on 3 January 2019 the Tribunal affirmed the decision to refuse the applicant’s mother a Subclass 602 visa on the basis that she did not meet cl.602.215. 

16. The Tribunal wrote to the applicant on 3 January 2019 to invite his comment on this information, which, if the Tribunal relied on, would be the reason to affirm the decision under review, as the applicant would not meet cl.602.212(4)(b).  The Tribunal explained that the relevance of this information is that, if relied on, the Tribunal would find that he does not meet cl.602.212(4)(b) as the person to whom he seeks to provide support does not hold a Subclass 602 visa.  The applicant was given until 17 January 2019 to respond or comment on this information.  To date no response has been received by the Tribunal, nor any request for an extension of time to respond. Having regard to all of the circumstances of the case, the Tribunal has decided to proceed to make a decision on the review without taking any further action to obtain the applicant’s views, noting that he has already appeared before the Tribunal to give evidence and present arguments. 

17. The Tribunal finds that the applicant does not meet cl. 602.212(4)(b) for the purposes of cl. 602.212(4) on the basis of being a support person because his mother, whom he seeks to provide support to, does not hold a Subclass 602 visa.  

18. Therefore, the applicant does not meet the requirements for the grant of the visa.

19. The decision under review must be affirmed.

    DECISION

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

    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).