Huynh (Migration)

[2022] AATA 763

Huynh (Migration) [2022] AATA 763 (16 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mia Ha Huynh

REPRESENTATIVE:  Dr Nathan (Nam) Le (MARN: 1910130)

CASE NUMBER:  2013982

HOME AFFAIRS REFERENCE(S):          BCC2020/2014398

MEMBER:Nicole Burns

DATE:16 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.212(4)(a) of Schedule 2 to the Regulations

Statement made on 16 March 2022 at 1:35pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – support person for the applicant’s mother – supported person did not hold a Medical Treatment visa – supported person’s Medical Treatment visa application remitted upon review – medical history – member of the family unit – emotional support – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
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 26 August 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’s parents applied for the visa on 3 August 2020 on the applicant’s behalf as a support person for her mother, Thi Ngoc Huyen Ha, who had applied for a medical treatment visa separately in order to continue rehabilitation on her legs and feet injured in a traffic accident in June 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 they were not satisfied that the applicant met cl 602.212(4).  The delegate noted that at the time of the primary decision the applicant’s mother did not hold a Medical Treatment visa. On this basis, the delegate found that the applicant did not meet cl.602.212(4). The delegate also found that there was no evidence that the alternative sub criteria—being those set out in cl.602.212(2), (3), (5), (6), (7) or (8)—were satisfied.  

4. The applicant’s parents appeared before the Tribunal via videoconference on 10 March 2022.  The Tribunal also received oral evidence from her parents’ friend, Tu Nguyen (over the telephone).  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review.  The representative was present at the hearing.

6. On 16 March 2022 the Tribunal made a decision in the applicant’s mother’s case[1], remitting her application for a Medical Treatment (Visitor) (Class UB) visa with the direction that she meets cl.602.212(2) and cl.602.215 of Schedule 2 to the Regulations.

   [1] AAT No. 2013979

7. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In his submission to the Tribunal the representative advises that the applicant was born in Melbourne on 17 June 2017 and a copy of her birth certificate has been provided to the Department.  The Tribunal accepts the applicant is Thi Ngoc Huyen Ha’s daughter.

9. The applicant’s mother’s medical history, and current treatment needs pertaining to the reasons why she wishes to remain in Australia temporarily for medical treatment is detailed in the Tribunal’s Decision Record for her case.  Although only four and a half years of age, the Tribunal is satisfied the applicant gives emotional support to her mother, Thi Ngoc Huyen Ha.  Further, the Tribunal is satisfied that Thi Ngoc Huyen Ha meets the relevant requirements for a Medical Treatment visa set out in cl.602.212(2). 

10. Accordingly, the Tribunal is satisfied that cl.602.212(4)(a) of Schedule 2 to the Regulations are met.

11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

    DECISION

12. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

    ·cl 602.212(4)(a) of Schedule 2 to the Regulations.

    Nicole Burns
    Member