CAHYADI (Migration)

[2020] AATA 5431

CAHYADI (Migration) [2020] AATA 5431 (26 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tjoa Robert CAHYADI

CASE NUMBER:  1826669

DIBP REFERENCE(S):  BCC2018/2782177

MEMBER:Tania Flood

DATE:26 October 2020

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 26 October 2020 at 2:26pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – person supported does not hold a Medical Treatment visa – applicant’s wife was refused a Medical Treatment visa – genuine temporary stay – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 602.212

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 Immigration on 23 August 2018 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 July 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). Relevant to this case is cl. 602.212(4).

3. The delegate refused the applicant’s visa because the delegate was not satisfied that the applicant met the requirements at cl.602.212(4) of the Regulations because the person he is seeking to support does not hold a Medical Treatment visa.

4. On 20 July 2018 the applicant’s wife applied for a Medical Treatment visa and the visa was refused on 23 August 2018.  The applicant’s wife sought a review of the decision by the Tribunal and the decision was affirmed by the Tribunal on 19 October 2020.

5. The applicant agreed to attend a joint hearing with his wife who made a separation application for review.  He appeared before the Tribunal on 14 October 2020 by telephone in a joint hearing conducted with his wife to present arguments in support of his case.  The hearing was held during the COVID-19 pandemic and the Tribunal determined it was reasonable to hold the hearing by teleconference having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by teleconference.  The Tribunal also received oral evidence from the applicant’s wife.  The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was represented in relation to the review. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. 

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

   BACKGROUND

7. In the application form for a Medical Treatment visa the applicant indicated that he wished to remain in Australia from 20 July 2018 until 20 July 2020 in order to accompany his wife who is undergoing medical treatment.

   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 the applicant meets the requirement for a Medical Treatment visa on the basis that he is seeking to support a person who holds a Subclass 602 visa: cl.602.212(4).

9. Clause 602.212 (4) of the Regulations outlines the requirements to be met by an applicant seeking to obtain a Medical Treatment visa on the basis that they are a support person.  Relevantly, the person to whom the applicant is to provide support must hold a Subclass 602 visa.

10. During the hearing held on 14 October 2020 the Tribunal discussed with the applicant and his wife their migration history, his wife’s medical condition and related treatment and their future intentions.  The Tribunal also discussed with the applicant the basis for his application for a Medical Treatment visa.  The applicant confirmed that he is seeking to support his wife while she undergoes medical treatment for a psychological condition.  The applicant was advised that the outcome of his application is therefore dependent on his wife being granted a Medical Treatment visa.  The applicant stated that he understood this.   The applicant also testified that he is not seeking the visa for the purpose of seeking any medical treatment himself.

11. On 23 August 2020 the delegate refused the applicant’s wife a Medical Treatment visa as the delegate was not satisfied that she genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  As noted above, the applicant’s wife applied separately to the Tribunal for a review of this decision and the Tribunal affirmed the decision on 19 October 2020.

12. The person to whom the applicant is to provide support, namely his wife, has been found not to meet the requirements for the grant of a Medical Treatment (Subclass 602) visa.  At the time of this decision the person to whom the applicant is to provide support does not hold a Subclass 602 visa and therefore the criterion at cl.602.212 (4) cannot be met.

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

14. In view of the above, the Tribunal is satisfied that the applicant does not meet the criteria at cl.602.212 (4).  Therefore, the Tribunal finds the applicant does not meet the requirements for the grant of the visa.  The decision under review must be affirmed.

    DECISION

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

    Tania Flood
    Member