2204513 (Migration)

[2023] AATA 780

2204513 (Migration) [2023] AATA 780 (21 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2204513

MEMBER:Jane Marquard

DATE:21 March 2023

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 21 March 2023 at 7:42am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – support person for family member – spouse refused a Medical Treatment visa – lengthy stay in Australia – period of unlawful residence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 18 March 2022 to refuse to grant the applicant a Medical Treatment (Support Person) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW AND TRIBUNAL FINDINGS - SUMMARY

2. The applicant is a man from Punjab, India. He first arrived in Australia [in] July 2008 on a [Student] visa. On 28 June 2010 the applicant’s de facto/spouse commenced a Skilled (VC 485) visa application with the applicant listed as dependent. This visa was refused on 25 May 2012. This decision was affirmed by this Tribunal differently constituted on 15 October 2013. After an unsuccessful ministerial intervention request, the applicant and his de facto/spouse and child remained in the country unlawfully between [October] 2014 and [November] 2017. The applicant then commenced a protection visa application which was refused on 8 October 2019.

3. The applicant applied for the visa the subject of this review on 2 March 2022. His de facto/spouse applied for a Medical Treatment (Visitor) (Class UB) visa, and his son also applied for a visa as a support person for his de facto/spouse at the same time. The applicant also has another child, born in [year], who is an Australian citizen.

4. The delegate of the Department of Home Affairs (the Department) refused to grant the applicant the visa because his de facto/spouse whom he intended to support, was refused, and does not hold a Medical Treatment (Subclass 602) visa.

5. On 16 December 2022 the Tribunal wrote to the applicant notifying him that the Tribunal had considered the information before it but was unable to make a favourable decision on the information before it. The Tribunal invited the applicant to a hearing on 24 January 2023 by video conference to present arguments and evidence in support of the review, along with his de facto/spouse and child. In the letter from the Tribunal, it was explained that if they did not appear at the scheduled hearing, then the Tribunal may make a decision on the review without taking further action to allow or enable them to appear before the Tribunal.

6. On 12 January 2023 the applicant, his de facto/spouse and child were invited to call for a test of the Microsoft teams technology on 16 January 2023. On 16 January 2023 the Tribunal attempted to call them twice but there was no response, so no test procedure was conducted. An SMS reminder of the hearing was sent to the applicant the day prior to the hearing.

7. In letters dated 29 March 2022 and 16 December 2022 the applicant, his de facto/spouse and child were invited by the Tribunal to provide evidence in support of the review. As at the date of this decision, no evidence has been provided.

8. On 23 January 2023 the visa applicant’ de facto/spouse wrote to the Tribunal and requested that a decision be made for the applicant, her de facto/spouse and child, on the information before the Tribunal rather than attendance at a hearing, confirming that the applicant and her child could not attend. The Tribunal has thus determined this matter on the papers with the applicant’s consent, pursuant to s360(2)(c)of the Act.

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

   RELEVANT LAW

10. At the time the applicant applied for the visa, 2 March 2022, Class UB contained one subclass, Subclass 602 (Medical Treatment). The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

11. The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Regulations.

12. The key issue in this case is whether the applicant meets cl 602.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This clause requires that an applicant meet one of subclauses (2) to (8). Relevantly to the applicant, as a support person he was required to meet subclause 602.212(4) which is set out below:

    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.

    FINDINGS

    Does the applicant meet Subclause 602.212(4)?

13. Subclause 602.212(4) requires that the applicant seek to give emotional and other support to an applicant who holds a Subclass 602 visa. In this case, the applicant seeks to give emotional and other support to his de facto/spouse, who has applied for a Subclause 602 visa.

14. In a separate decision, the Tribunal has affirmed the decision of the Department to refuse his de facto/spouse a Medical Treatment (Subclause 602) visa, as the Tribunal was not satisfied that she genuinely intends to stay temporarily in Australia for the purposes of medical treatment, as required by cl 602.215 of Schedule 2 to the Regulations.

15. The Tribunal is not satisfied therefore that the applicant meets subclause 602.212(4) as his de facto/spouse, does not hold a Subclass 602 visa.

16. No other subclause in cl 602.212 is relevant.

17. Given the above findings, cl 602.212 is not met.

    DECISION

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

    Jane Marquard
    Member