Torbay (Migration)

[2023] AATA 3658

Torbay (Migration) [2023] AATA 3658 (17 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mirna Torbay

REPRESENTATIVE:  Miss Eva Abdelmessiah (MARN: 0636719)

CASE NUMBER:  2218221

HOME AFFAIRS REFERENCE(S):          BCC2022/4987786

MEMBER:Luke Hardy

DATE:17 October 2023

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(2) and cl 602.215 of Schedule 2 to the Regulations.

Statement made on 17 October 2023 at 2:25pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – substantial compliance with visa conditions – serious motor vehicle accident injuries – current extensive medical treatment – business interests in Lebanon – difficulties of air travel – medically unfit to leave Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

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 2 December 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, Ms Torbay, is a Lebanese national who has made a number of short visits to Australia as a sponsored visitor or on subclass 408 temporary activity visas. She last arrived here on 10 July 2019 on a temporary activity visa.

3. Ms Torbay was seriously injured in a motor vehicle accident during her last and current stay. She applied for the visa on 23 November 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).

4. The delegate refused to grant Ms Torbay the visa finding that she did not meet c.602.215 of the Migration Regulations:

   602.215  

   (1)  The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

   (c)  any other relevant matter.

   (2)  …

5. Ms Torbay appeared before the Tribunal on 13 October 2023 to give evidence and present arguments. She was accompanied by her adviser, a registered migration agent.

6. The Tribunal hearing was facilitated by an interpreter in the Arabic-English medium.

7. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 Ms Torbay genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether she has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, was subject, and whether she intends to comply with the conditions to which the Subclass 602 visa would be subject.

   Are the medical treatment requirements met?

9. 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.

10. There is no suggestion that any of the other alternative sub-criteria are relevant in this case.

11. In this case, Ms Torbay duly submitted to the Department of Home Affairs several documents detailing the medical treatment she not only required but was then currently receiving.

12. On 24 November 2022, the delegate assessing the application asked Ms Torbay for further information:

    Provide evidence that shows that you have an intention to return to your home country.
    The details that you need to provide may include:

    ● the presence of immediate family members in your home country

    ● on-going employment

    ● property, or other significant assets, owned in your home country.

    ● Flight ticket to depart Australia

    Documentation to support these claims can include birth and/or marriage certificates of family members, or employment contracts.

13. I note that the items in the list sent to Ms Torbay were only suggestions, and were not exhaustive, definitive or minimal requirements. However, Ms Torbay failed to reply and the application was refused.

14. I am less concerned with Ms Torbay’s failure to reply, or with her reasons for that failure, as she was an invalid at the time. In any event, she provided the Tribunal with adequate testimony regarding her business interests in Lebanon, the presence of her father there and of a genuine intention to depart Australia as soon as she is fit to travel.

15. According to copious evidence that I have seen, all of which I consider expert and genuine, especially the detailed reporting from the Sydney Spine Institute, Ms Torbay has spent more than the last year receiving specialist treatment for quite serious spinal disc injuries that have inhibited mobility and sensation and which have also generated severe and acute pain. There is much reporting of the nature of how debilitating and disorientating pain flares up unexpectedly and which is very hard to treat in the moment. In addition, Ms Torbay has been receiving treatment for trauma and other psychological sequelae following the accident. She is, however, responding to treatment, to a point where one doctor has recommended that she attempt to commence albeit very moderated volunteer work with substantial rest intervals. I asked Ms Torbay about this and she said she would like to commence this therapy through work if she can overcome the pain that can and sometimes does arise from travelling in a car, bus or train.

16. We spoke about the implications of air travel, as there is an expectation that Ms Torbay should eventually fly home to Lebanon. She spoke of the availability, up to a point, of appropriate treatment and therapy in Lebanon, but, supported by some of the medical reporting, told me that she is still not able to sit through a flight or flights from Australia to Lebanon, given the need to sit comfortably, the ability to do so only for short periods, the need to stand and walk at intervals and the excruciating nerve pain that can flare up if there are vibrations, such as during take-off and, especially, landing.

    Does the applicant have a genuine intention to stay temporarily for the visa purpose?

17. Overall, I have found Ms Torbay to be a truthful and compelling witness in this matter. She has been very unfortunate to have suffered such terrible injuries during her time in Australia and she is very lucky to be alive. I am very confident that her pain and need for a further period of treatment, therapy and monitoring are absolutely genuine, as is her desire to return to Lebanon and her father as soon as she is fit to do so.

18. 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) which requires that an applicant:

    ·is in Australia

    ·has turned 50

    ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

    ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

19. Whereas I find that Ms Torbay is medically unfit to leave Australia, that does not mean she meets cl 602.212(6) as she has not applied for a permanent visa in Australia, let alone appeared to have met all the criteria for that visa other than the health criteria, etc. I find that Ms Torbay does, however, meet cl 602.215 in that I am satisfied that she meets cl 602.215(1).

20. To conclude, I am satisfied that in this case the requirements in cl 602.212(2) and, accordingly, cl 602.215 are 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.

    DECISION

21. 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(2) and cl 602.215 of Schedule 2 to the Regulations.

    Luke Hardy
    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).