Zhou (Migration)

Zhou (Migration) [2019] AATA 5498 (5 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Hong Zhou
CASE NUMBER:  1812506
DIBP REFERENCE(S):  BCC2018/872713 CLF2018/46096
MEMBER:Moira Brophy
DATE:5 December 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 05 December 2019 at 2:08pm

CATCHWORDS
MIGRATION – Medical Treatment (Class UB) visa – Subclass 602 (Medical Treatment) – genuine intention to stay temporarily for purpose of visa – psychological counselling for adjustment disorder – not currently receiving treatment or taking medication – no evidence of need for ongoing treatment – previous applications by applicant, partner and children, including for protection visa and ministerial intervention – applicant not unfit to depart Australia – request for referral for ministerial intervention – minister’s guidelines for exercise of public interest powers – strong compassionate circumstances – separation from children, including Australian citizen and protection visa holder – no referral for intervention – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 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 11 April 2018 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 22 February 2018. 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 the applicant genuinely intended to remain in Australia for the purposes of medical treatment and not for the purpose of residing permanently in Australia.
The applicant, Mrs Hong Zhou appeared before the Tribunal on 27 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
BACKGROUND
The applicant, Mrs Hong Zhou is a 35 year old national of China who first arrived in Australia on 3 September 2002 as the holder of a TU-571 Student Visa. The applicant has only departed Australia once since then and she last arrived in Australia on 27 April 2003. The applicant and her partner applied for a Protection visa on 16 December 2008. That application was refused. Following further applications made for and on behalf of two of her children the applicant also unsuccessfully sought Ministerial intervention regarding her situation. This Medical Treatment UB 602 visa application was lodged on 22 February 2018 and the applicant currently holds a WE 050 Bridging Visa.
To satisfy the requirements for the grant of a Medical Treatment visa, the applicant is required to demonstrate that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The applicant submitted Evidence of intended medical treatment form 1507 claiming that she requires psychological counselling for treatment of ‘adjustment disorder’.
In support of this applicant the following documents were provided to the Department :
·     Department of Immigration and Border Protection form 1507
·     Department of Immigration and Border Protection form 956
·     Department of Immigration and Border Protection form 48 ME
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 has provided sufficient information for the Tribunal to be satisfied she meets the criteria for the visa and whether the Tribunal is satisfied the applicant genuinely is intending to stay in Australia only for the purposes of treatment.
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 application form (Form 48ME) contains a series of questions which asks the applicant how long she seeks to remain in Australia (Q15), for what period will she be under medical care (Q17), she is asked to describe the medical treatment she has arranged (Q18), and details of his doctor/hospital in her home country and in Australia (Q's 19 and 20) and funding for her stay (Q26).
At the time of application the applicant stated she wished to remain in Australia for the period from 23 February 2018 to 23 December 2018 to obtain psychological counselling from Dr Jay Lin. The original form 1507 submitted with the application and completed by the medical practitioner, Dr Jay Lin was not dated. Dr Lin opined the applicant had adjustment disorder and that this condition would require psychological counselling. That counselling would be provided at Auburn Healthcare.
The applicant told the Tribunal that she was not currently receiving any medical treatment. She had last seen a doctor last year, or maybe the year before, she was unsure. She had last seen Dr Jay Lin because she did not consider her mood was normal. She was not taking any medication other than occasional medication for headaches.
The applicant has not provided the Tribunal with any medical evidence to indicate that she requires ongoing medical treatment in the future. She has not provided any medical evidence that a long flight would be injurious to her health. During the hearing she gave evidence that she was continually stressed about her family’s situation but there was no evidence of any ongoing medical treatment that would necessitate her staying in Australia.
The applicant has filed with the Tribunal a copy of the Department's Decision Record dated 11 April 2018 which sets out her immigration history. The Tribunal raised as an issue with her its concerns that her immigration history, including the fact that she had lived in Australia since 2005 and for most of that time she has not held a substantive visa, and that history tended to indicate that she applied for the Medical Treatment visa to extend her stay in Australia and not because she intended seeking medical treatment in Australia. The applicant agreed it was her intention to stay in Australia. She said she did not want to be separated from her children. Her eldest child is an Australian citizen and her youngest child has been granted a Protection visa.
Accordingly after taking into account the evidence on file and the evidence given at the time of hearing the Tribunal finds it cannot be satisfied that the applicant meets the requirements for the visa as there is no information or evidence to suggest that that the visa applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
Given the above findings, cl.602.215(1) is not met.
Clause 602.215(2) indicates that subclause 602.215(1) does not apply if the requirements described in subclause 602.212(6) are met by the applicant.
Is the applicant unfit to depart Australia?
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(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.
The evidence before the Tribunal indicates that the applicant was born on 5 October 1984 and she is therefore 35 years of age. As she is not able to satisfy the requirements of cl.212(6)(b) the Tribunal did not consider the remaining requirements. Therefore, the Tribunal finds that the applicant does not satisfy the requirements of cl.602.212(6).
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.
Intervention
The Tribunal explained at the hearing that the consideration of cl. 602.215 issue did not involve a consideration of compelling circumstances, and it asked whether the intention in the applicant having raised compelling circumstances, being separation for her children, at hearing was to request that the Tribunal refer the case to the Minister for Ministerial Intervention. This was acknowledged by the applicant as correct.
The applicant has requested the Tribunal refer the application to the Minister for Ministerial Intervention under s.351 of the Act. Subsection 351(1) of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favorable to the applicant, whether or not the Tribunal had the power to make that other decision. Subsection 351(3) provides that the power under subsection (1) may only be exercised by the Minister personally.
Subsection 351(7) provides that the Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
The Minister issued new guidelines (Minister's Guidelines) on 29 March 2016 regarding the exercise of the Minister for Immigration's public interest powers under ss.351, 417 and 501J of the Migration Act 1958.
There is not a presumption that the Minister will consider all matters referred to him by the Tribunal. Instead, the Department will assess the circumstances of each case referred by the Tribunal and only refer to the Minister those which meet the new guidelines. Cases assessed as not meeting the guidelines will be finalised by the Department without the Minister's consideration.
The Minister's Guidelines explain, amongst other things, the unique or exceptional circumstances in which a case might be considered to be referred to the Minister and in which the Minister may wish to consider intervening, and confirms if a case does not meet these guidelines the Minister does not wish to consider intervening in that case.
The Minister's Guidelines on unique or exceptional circumstances refer to matters such as:
·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australia citizen or an Australia family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The Guidelines also provide that with very limited exceptions the Minister does not wish to consider requests for intervention where there has been a previous request made under ss 351, 417 or 501J to intervene, whether in respect of the present or any previous visa decision.
The Tribunal raised with the applicant that since the matter had previously been referred to the Minister there had not been a change in the circumstances they claimed were compelling. The applicant submitted that there was in fact new evidence and that evidence related to the fact her eldest child was now an Australian citizen and her youngest child had been granted a Protection visa. It was submitted that the circumstances relied on now were circumstances specifically and subjectively about the children and the effect separation from their mother would have on them.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power but has decided not to refer the matter on this occasion as while appreciating the circumstances the Tribunal does not consider when the circumstances of the family are considered as a whole including the contribution they themselves have made to the situation they are in, the matter should be referred for Ministerial intervention. The Tribunal notes that the applicant can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Moira Brophy
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 5498

5 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Jurisdiction

Natural Justice