Buta Singh (Migration)

[2023] AATA 1706

Buta Singh (Migration) [2023] AATA 1706 (31 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Buta Singh

CASE NUMBER:  2208802

HOME AFFAIRS REFERENCE(S):          BCC2022/1658266

MEMBER:Member Nathan Goetz

DATE:31 May 2023

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 31 May 2023 at 11:53am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 –support person for his wife – wife’s Medical Treatment visa was refused – applicant does not genuinely intend to remain in Australia on a temporary basis – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360

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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

   BACKGROUND

2. The applicant identifies as a male citizen of India born in 1981 and presently located in Australia. In Australia is his wife Ms Neena Rani, who is a female citizen of India born in 1983, and their daughters Miss Anmol Preet (born in 2010) and Miss Agampreet Kaur (born in 2021).

3. On 25 April 2016 the applicant last arrived in Australia holding a temporary work visa. That visa was cancelled on 10 April 2017.

4. On 12 May 2022 the applicant applied, together with his wife, and one daughter Miss Agampreet Kaur, for the medical treatment visas. 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). On 2 June 2022 the delegate refused to grant the applicant the medical treatment visa on the basis that he did not satisfy cl 602.212 of the Regulations.

5. On 16 June 2022 the applicant applied to the Tribunal for review of the decision. His wife and daughter were also refused to medical treatment visas and applied to the Tribunal for review of their decisions.

6. On 15 May 2023 the Tribunal wrote to the applicant to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 10:00am on 2 June 2023 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant was directed to complete and return a ‘Response to hearing invitation’ within 7 days. The applicant did not do so.

7. On 16 May 2023 the Tribunal wrote to the applicant to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The information requested is detailed later in this decision record. The applicant was advised that if he did not provide the information requested by the prescribed date, or did not apply for an extension of time to do so, the Tribunal hearing would be cancelled and the Tribunal would make a decision on the review without taking any steps to allow or enable the applicant to appear at a Tribunal hearing. The applicant did not provide the information, or ask for an extension of time. Accordingly, the Tribunal hearing was cancelled: ss 360(2)(c), 360(3) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the medical treatment visa application form, the applicant identified that he was in Australia and that the purpose of his stay was to ‘support a person who either holds, or is applying for, a medical treatment visa either for medical treatment / consultation or donating an organ in Australia. This was a response available in a field of pre-populated responses contained in the online form. The applicant identified that the visa application was part of a group of visa applications. The applicant identified his wife and two daughters as contacts in Australia. Attached to the visa application form was a completed Form 1507 – Evidence of intended medical treatment signed by a doctor concerning the applicant’s wife. It was his wife that the applicant was providing support to.

9. The delegate decision record demonstrates that the applicant’s wife did not hold a medical treatment visa. This is because the applicant’s wife was refused the medical treatment visa the same day as the applicant.

10. The basis of the applicant’s wife’s refusal of the medical treatment visa by the delegate was that she did not genuinely intend to stay temporarily in Australia. This meant she failed to satisfy cl 602.215 of Schedule 2 to the Regulations.

11. The applicant’s visa was refused because he did not satisfy cl 602.212(4) of Schedule 2 to the Regulations which provides that the applicant was required to satisfy the following:

    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.

12. Clearly there had been no finding by the delegate that the applicant’s wife satisfied any of the subclauses of cl 602.212, nor did she hold a medical treatment visa. Consequently, the applicant could not be granted a medical treatment visa on the basis that he was seeking to give emotional and other support to his wife.

13. Further, as the applicant was not claiming to be in need of medical treatment himself, he was not claiming to meet any of the other subclauses of cl 602.212. Accordingly, the delegate refused to grant the visa on the basis that the applicant did not satisfy any of the subclauses of cl 602.212.

14. Given that the applicant appeared to be only claiming to meet cl 602.212(4) and that he should be granted the visa on that basis, on 15 May 2023 the Tribunal wrote to the applicant under s 359(2) and requested that he provide information to demonstrate that he satisfied cl 602.212(4). The Tribunal did so because, given that there was no finding that the applicant’s wife satisfied cl 602.212(2) or (3), and there was no evidence that the applicant’s wife held a medical treatment visa, it appeared that the applicant’s review would be futile.

15. This was because the applicant’s wife was refused the visa on the basis that she did not satisfy cl 602.215, not on the basis that she did not satisfy cl 602.212(2) or (3). Even if the Tribunal on review disagreed with the delegate decision and set aside the decision to refuse the visa on the basis that the applicant’s wife did satisfy cl 602.215, the Tribunal was not making a finding about any subclause of cl 602.212. Nor is setting aside a decision to refuse to grant a visa on review a decision to grant the visa. In any event, on 31 May 2023 the Tribunal affirmed the decision to refuse to grant the applicant’s wife a medical treatment visa.

16. The Tribunal wished to applicant to turn his mind to the issue and provide the Tribunal with information to demonstrate that he did meet cl 602.212(4). As noted previously, the applicant did not respond to the request for information.

17. For the following reasons, the Tribunal has determined that the decision should be affirmed.

18. The applicant claimed that he was providing emotional and other support to his wife. The fact is that there is no evidence that the applicant’s wife satisfies cl 602.212(2) or (3) and that she holds a medical treatment visa. This is because the applicant’s wife’s medical treatment visa was refused not on the basis of cl 602.212(2) or (3), but because she did not satisfy cl 602.215. His wife’s review was finalised on the basis that she did not satisfy cl 602.215. She does not hold a medical treatment visa.

    CONCLUSION

19. The applicant has not claimed to meet any criteria for the visa under cl 602.212, other than cl 602.212(4). There is no evidence that the applicant satisfies any of the clauses that he has not claimed to satisfy.

20. Accordingly, the Tribunal is not satisfied that the applicant satisfies cl 602.212(2), (3), (5), (6), (7) or (8).

21. Specifically for the criteria that the applicant claimed to meet, there is no evidence that the applicant’s wife, who he claims to be emotional and other support, satisfies cl 602.212(2) or (3) and that she holds a medical treatment visa.

22. Accordingly, the Tribunal is not satisfied that the applicant satisfies cl 602.212(4).

23. Based on the findings above, the applicant does not meet the requirements for the grant of the visa as provided under cl 602.212. The decision under review must be affirmed.

    DECISION

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

    Nathan Goetz
    Member