Uppalapati (Migration)

Uppalapati (Migration) [2019] AATA 2917 (21 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Srilakshmi Uppalapati
CASE NUMBER:  1721752
DIBP REFERENCE(S):  BCC2017/3034634
MEMBER:Mary Urquhart
DATE:21 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Statement made on 21 March 2019 at 2:46pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – applicant does not meet sub-criteria – returned to home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 602.212

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 31 August 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 31 August 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 applicant did not meet the criteria for the visa required by cl.602.212.
On 25 February 2019 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her review application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 21 March 2019.
When the hearing invitation was sent it put the applicant on notice that if she failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable her to appear before it.
On 21 March 2019 the applicant did not attend the hearing. However on the day of the hearing the applicant contacted the Tribunal to explain her failure to attend. She has returned home. Departmental movement records indicate the applicant departed Australia on 21 July 2018.
No further information in support of the application for review was given by the applicant in her application for review.
In these circumstances, the Tribunal has decided, pursuant to s. 362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 criteria for a grant of the visa.
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.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The Tribunal has carefully considered the material available in the Department file number BCC2017/3034634 and the Tribunal file.
The Tribunal has considered whether the applicant satisfies cl.602.212.
The Tribunal finds the applicant does not meet the criteria in cl. 602.212 (1) and (2) attached to this decision.
The Tribunal finds the applicant has not provided evidence that she is an organ donor and accordingly cl.602.212 (3) is not met.
The applicant has not provided evidence that she is supporting a person holding a Medical treatment visa. The applicant has stated they are supporting their child Uppalapati, Nanda Kishore Varma. Departmental records indicate that this applicant does not hold a Medical Treatment Visa. Accordingly cl.602.212 (4) is not met.
The applicant has not provided evidence that she is a citizen of Papua New Guinea. Accordingly cl.602.212 (5) is not met.
The applicant has not provided evidence that she has turned 50 and is unfit to depart Australia. Accordingly cl.602.212 (6) is not met.
The applicant has not provided evidence that she holds a Medical treatment visa and has applied under financial hardship grounds. Accordingly cl.602.212 (7) is not met.
The applicant has not provided evidence that she has compelling personal reasons for the grant of the visa. Accordingly cl.602.212 (8) is not met.
Given the above findings, the requirements in cl.602.212 are not met.
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.
Mary Urquhart
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).

[2019] AATA 2917

21 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction