CHHANTYAL (Migration)

[2024] AATA 3092

CHHANTYAL (Migration) [2024] AATA 3092 (8 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DEEPAK CHHANTYAL

CASE NUMBER:  2308190

HOME AFFAIRS REFERENCE(S):          BCC2023/1246235

MEMBER:Mara Moustafine

DATE:8 July 2024

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 08 July 2024 at 4:39pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – had already left Australia – applicant does not hold a visa which gives him a right to return to Australia – not necessary to consider the substantive case for the grant of the visa –– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 602.411

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 19 May 2023 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 February 2023. 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 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

4. The applicant applied to the Tribunal for a review of that decision on 9 June 2023.

5. On 1 July 2024 an officer of the Tribunal wrote to the applicant advising him that the Tribunal had considered the material before but was unable to make a favourable decision on this information alone.  The applicant was invited to appear before the Tribunal on 24 July 2024 to give evidence and present arguments relating to the issues arising in his case.

6. On 7 July 2024 the applicant emailed the Tribunal stating that he had already left Australia and would not attend the scheduled hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Under s65(1) a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa are met.

9. So far as is relevant to this matter, cl.602.411 provides that if the applicant is in Australia at the time of the application, the applicant must be in Australia at the time the visa is granted.

10. The applicant advised the Tribunal on 7 July 2024 that he had departed Australia. Departmental records indicate that the applicant departed Australia on 30 June 2024 and remains outside Australia. The applicant does not hold a visa which gives him a right to return to Australia. As the applicant is not now in Australia, the Tribunal finds that at the time of this decision, the applicant does meet the requirements of cl.602.411 and the applicant cannot be granted a visa.

11. Having reached this conclusion it is not necessary to consider the substantive case for the grant of the visa.

    DECISION

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

    Mara Moustafine
    Member