Dhaliwal (Migration)

[2023] AATA 3661

Dhaliwal (Migration) [2023] AATA 3661 (20 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baljinder Singh Dhaliwal

CASE NUMBER:  2305052

HOME AFFAIRS REFERENCE(S):          BCC2023/1223160

MEMBER:David Crawshay

DATE:20 October 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 20 October 2023 at 8:51am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – support person for family member – applicant’s spouse refused a Medical Treatment visa – 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 by a delegate of the Minister for Home Affairs on 24 March 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 18 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 the delegate found that the applicant was not a support person of his wife, Mrs Kulwinder Kaur Dhaliwal. Mrs Dhaliwal is the subject of a separate application for review of a refusal of a Subclass 602 visa (matter number 2305051). Her visa application was refused by the delegate because the delegate was not satisfied that she had a genuine intention to stay temporarily in Australia for the purpose for which the visa was granted. under cl.602.215. A decision in respect of her has been made separately, as has a decision in respect of her and the applicant’s son, Master Karnbir Singh Dhaliwal (matter number 2305053), who also had his visa refused on the basis of being found not to be a support person of Mrs Dhaliwal.

4. On 15 September 2023, the applicant was invited to give evidence and present arguments in a video hearing before the Tribunal on 5 October 2023. The hearing was to be conducted as a joint hearing with the matters of his mother and father.

5. On 1 October 2023, Mrs Dhaliwal wrote to the Tribunal by email to seek a postponement of the hearing as she claimed to be sick with flu and an ear infection. On 2 October 2023, the Tribunal responded by refusing this request on the basis that she had not provided any documentary evidence to show that she or the other applicants were unable to attend the hearing.

6. On 3 October 2023, Mrs Dhaliwal wrote to the Tribunal by email in the following relevant terms:

   My name is kulwinder kaur dhaliwal. My case number is 2305051. My husband name is Baljinder singh dhaliwal. His case number 2305052 and my son name is karnbir singh dhaliwal. We have combined hearing with you on 5th October 2023, But sorry we can not attend that hearing. Please give your decision based on the information.

   [errors in original]

7. On 4 October 2023, the Tribunal wrote to Mrs Dhaliwal in the following relevant terms:

   On 3 October 2023 the Tribunal received an email from you stating that you and your fellow applicants, Baljinder Singh Dhaliwal and Karnbir Singh Dhaliwal, would be unable to attend the combined hearing scheduled for 5 October 2023 at 10:30am. You also requested the Tribunal to make a decision based on the evidence provided.

   The Tribunal confirms that you will not be attending the hearing on 5 October 2023 and the hearing is cancelled in respect of your matter (2305051) in accordance with s.360(2)(b). As you are Karnbir Singh Dhaliwal’s mother, the Tribunal accepts that you are entitled to give notice on his behalf that he will not be attending the hearing. As such, it confirms that he will not be attending the hearing and therefore the hearing is cancelled in respect of his matter (2305053).

   However, you are not listed as a party or authorised recipient for Baljinder Singh Dhaliwal and have no entitlement to give notice on his behalf that he will not be attending. As such, the Tribunal has not received notice from or on behalf of him that he will not be attending the hearing.

8. On the same date, the Tribunal reissued a hearing invite with the applicant as the sole invitee.

9. On the same date, the applicant sent an email stating that he could not attend the hearing and the Tribunal made a decision to cancel the hearing in respect of him.

10. On 5 October 2023, the Tribunal made a direction affirming the decision to refuse Mrs Dhaliwal’s visa. As it deemed that this information would be the reason, or a part of the reason, for affirming the decision that is under review in respect of the applicant, it sent a letter to him pursuant to s.359A, seeking his comment on or response to this information. No response has been received by the date of this decision, which is after the due date for comment or response.

11. The Tribunal has chosen to determine the applicant’s matter on the information available to it without taking any more steps to obtain further information. It considers that it is reasonable to do so in light of the applicant’s lack of substantive engagement with the Tribunal since his application for review form and associated documents were submitted in April 2023, including in response to the hearing invite dated 15 September 2023 which requested “all documents you intend to rely on to support your case” and more recently through his non-response to the Tribunal’s s.359A letter. In these circumstances, the Tribunal finds that the applicant has already been afforded a reasonable opportunity to provide information and that, furthermore, he is unlikely to provide further information even if requested.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

14. The issue in this case is whether the applicant meets cl.602.212(4), which relevantly provides that a visa may be granted to a person who seeks to give emotional and other support to an applicant as long as that other applicant is, among other things, the holder of a Subclass 602 visa or certain other medical treatments visas. As above, the other applicant is the applicant’s wife, Ms Dhaliwal, who applied for her visa on the basis of being a person seeking medical treatment.

15. As above, the Tribunal sent a letter to the applicant pursuant to s.359A of the Act in the following relevantly terms:

    The particulars of this information are as follows:

    ·On 5 October 2023, the Tribunal affirmed the decision of the Department not to grant Mrs Kulwinder Kaur Dhaliwal a Medical Treatment (Visitor) visa.

    This information is relevant to the review process because it is a requirement of cl.602.212(4) that the person to whom you are to provide support holds a Subclass 602 visa, a Subclass 675 visa or a Subclass 685 visa: cl.602.212(4)(b). As Mrs Dhaliwal does not hold a Subclass 602 visa, and as there is no evidence to show that she holds a Subclass 675 or a Subclass 685 visa, then it would appear that you are unable to meet the requirement under cl.602.212(4)(b).

    The consequences of this information being relied upon by the Tribunal may be that it forms the view that you are not a support person of Mrs Dhaliwal pursuant to cl.602.212(4) – which was the basis on which you made the application for a Subclass 602 visa.

    This would be the reason, or a part of the reason, for affirming the decision that is under review.

16. As at the date of this decision, which is after the due date, no comment or response has been received by the Tribunal.

17. The Tribunal has considered the information in front of it. It finds that the applicant’s wife, being the person for whom he claimed in his application form to be a support person, is not the holder of a Subclass 602 visa and there is no evidence that she is the holder of any other Medical Treatment visas. Therefore, the applicant is unable to meet cl.602.212(4)(b), which is a cumulative requirement of cl.602.212(4).

18. Furthermore, there is no suggestion that any of the other alternative subclauses under cl.602.212 is relevant in this case. Indeed, the Tribunal notes that the application form stated that the applicant’s purpose of stay was to “[s]upport[ ] a person who wither holds, or is applying for, a medical treatment visa for either medical treatment/consultation or donating an organ in Australia”. There is no evidence that he has made any claims against the other subclauses under cl.602.212.

19. As none of the alternative subclauses in cl.602.212 is satisfied, the applicant does not satisfy cl.602.212 in its entirety.

20. 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.

    DECISION

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

    David Crawshay
    Member