Hossain (Migration)

[2019] AATA 1712

Hossain (Migration) [2019] AATA 1712 (25 February 2019)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Saifuddin Hossain

CASE NUMBER:  1730255

DIBP REFERENCE(S):  BCC2017/4118126

MEMBER:Paul Windsor

DATE:25 February 2019

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 25 February 2019 at 3:42pm


CATCHWORDS
MIGRATION – Medical Treatment (Visitor)(Class UB) visa – Subclass 602 (Medical Treatment) – applied as support person for wife – wife does not hold medical treatment visa – applicant invited to hearing – no response – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 10 November 2017 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 31 October 2017. 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).

3. The delegate refused to grant the applicant the visa because the applicant applied under cl.602.212(4) as a support person for his wife, Mrs Mahmuda Akhter (case 1729879).   The delegate found that the applicant did not meet the requirements of cl.602.212(4)(b) because Mrs Akhter did not hold a Subclass 602, 675 or 684 Medical treatment visa.  The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 8-10 of the Tribunal file.

4. On 6 February 2019 the Tribunal wrote to the applicant advising him that it had considered the material before it but was unable to make a favourable decision on this information alone.  Mr Hossain was invited to appear before the Tribunal at 11:00 am on 25 February 2019 in a combined hearing with his wife, Mrs Mahmuda Akhter (case 1729879) and three children Miss Sumaiya Hossain (case 1730257), Master Ayan Hossain (case 1730259) and Master Ashaz Hossain (case 1730261) (who also applied for Medical Treatment visas as support persons for Mrs Akhter and were refused these visas on the same date), to give evidence and present arguments relating to the issues in the case. 

5. The applicants’ registered migration agent replied to this invitation on 7 February 2019 confirming that he had notified the applicants of this invitation and was awaiting their instructions, and that he would respond within seven days.  No further advice was received from the applicants and the applicants did not attend the hearing scheduled for 11:00 am on 25 February 2019.  Mr Hossain and Mrs Akhter were sent SMS messages to the mobile phone contact numbers provided in their review applications on 18 and 22 February 2019 reminding them of the upcoming hearing.

6. Mr Hossain was advised that if he did not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or the information before the Tribunal.  He was advised that if he is not able to attend the hearing he should advise the Tribunal as soon as possible, and he should note that the Tribunal will only change the scheduled date if satisfied that he has a very good reason for being granted an adjournment, and if the Tribunal does not advise him that an adjournment has been granted he must assume that the hearing will go ahead.

7. Having considered the circumstances of this matter including that it is clear that the applicant received the invitation to attend the hearing well in advance of the scheduled hearing date, but failed to attend the hearing at the scheduled time and date, and has not sought to otherwise engage the Tribunal to seek a change in the time and date of the hearing or to explain his failure to attend the hearing, the Tribunal decided to exercise its discretion to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.  Mr Hossain applied under cl.602.212(4) as a Support person on the basis that he seeks to give emotional and other support to his wife, Mrs Akhter.  The issue in this case is whether Mr Hossain meets the requirements of cl.602.212(4)(b) that the person to whom the applicant is to provide support holds a Subclass 602, 675 or 685 Medical Treatment visa.

10. As Ms Akhter does not hold a Subclass 602, 675 or 685 Medical Treatment visa Mr Hossain does not meet the requirements of cl.602.212(4).  There is nothing to indicate or suggest that he meets the requirements of any of the alternative subclauses in cl.602.212.

11. 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

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

    Paul Windsor
    Member