Duan (Migration)

[2022] AATA 671

Duan (Migration) [2022] AATA 671 (8 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yemao Duan

REPRESENTATIVE:  Mrs Betty Zhang (MARN: 0964385)

CASE NUMBER:  2009597

HOME AFFAIRS REFERENCE(S):          BCC2020/1269152

MEMBER:Meena Sripathy

DATE:8 March 2022

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 March 2022 at 11:41am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – support person – supported person does not hold a Medical Treatment visa – supported person’s decision under review affirmed – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cl 602.212

CASES

Hasran v MIAC [2010] FCAFC 40

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 21 May 2020 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 27 March 2020. 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 applicant applied for the visa on the basis of providing support to a person who is seeking medical treatment in Australia and the delegate found that the person who they sought to support does not hold a Medical Treatment visa and therefore the applicant does not meet cl.602.212(4) or any other subparagraph of that clause.  

4. On 21 January 2022 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comments on information that it considered would be the reason or part of the reason for affirming the decision under review in writing.  The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 4 February 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant has not provided response to the invitation within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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, at time of the Tribunal’s decision, one of the stated purposes for which the stay in Australia is required: cl.602.212.

8. In the present case the applicant made the application on the basis of seeking to support a person who holds or is applying for a medical treatment visa for medical treatment or organ donation.  He submitted in support of his application a Form 1507 relating to Wanqi Sou.

9. Ms Wanqi Sou’s application for a Medical Treatment visa was the subject of a separate review application constituted to the same Tribunal (case ref. 2009595).  In a decision made on 20 January 2022, the Tribunal decided this matter, affirming the decision under review.

   Does the applicant meet the requirements as a support person?

10. Clause 602.212(4) relates to the applicant seeking to give emotional and other support to an applicant in relation to whom the requirements in subclause (2) or (3) are met.  Subparagraph (2) relevantly, relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Subclause (4) also requires the person to whom the applicant is to provide support to hold a Subclass 602 visa and the applicant must satisfy PIC 4005.

11. The application was refused because the person who the applicant sought the visa to provide support did not hold a Medical Treatment visa. 

12. As indicated above, Wangqi Sou had a separate review application to the Tribunal, which was determined on 20 January 2022. The Tribunal informed the applicant on 21 January 2022 that the Tribunal, in related matter 2009595, affirmed the decision not to grant Ms Wanqi Suo a Medical Treatment (Visitor) class UB visa on the basis that she does not satisfy cl.602.212(2) of the Migration Regulations. He was informed that this information is relevant because, subject to his comments or response, the Tribunal would rely on it to find that he does not meet cl.602.212(4) on the basis of providing support to Ms Suo as she does not meet cl.602.212(2) and does not hold a Subclass 602 visa.

13. He was invited to provide comments or a response but has not provided any response to date. As a result of failing to respond to the invitation, he lost his entitlement to a hearing.

14. The Tribunal finds on the information referred to above that Ms Suo did not meet cl.602.212(2) and her application was refused on that basis. She applied for review of that decision to refuse her application for a Medical Treatment visa and it was affirmed by the AAT.

15. On the basis of this information, the Tribunal finds there is no evidence that the person who the applicant seeks to provide support to holds a Medical Treatment visa.

16. There is no suggestion that any of the other alternative sub criteria are relevant or are met in this case. Specifically, there is no evidence that the applicant seeks the visa to obtain medical treatment himself, or for the purposes of donating an organ for transplant; or that he is a citizen of PNG who resides in Western Province of PNG; or that he has turned 50 and been refused a permanent visa for reasons of health criteria.

17. Given the above findings, the requirements in cl 602.212(2) are not met.

18. 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

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

    Meena Sripathy
    Member