Mercado Fernandez (Migration)

[2022] AATA 4654

Mercado Fernandez (Migration) [2022] AATA 4654 (2 December 2022)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sergio Daniel Mercado Fernandez

CASE NUMBER:  2105460

HOME AFFAIRS REFERENCE(S):          BCC2021/402918

MEMBER:Joseph Lindsay

DATE OF DECISION:  2 December 2022

DATE CORRIGENDUM

SIGNED:7 December 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The sentence “In that case, the Tribunal has made the decision to remit the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant’s spouse meets cl 602.211 of Schedule 2 to the Regulations” at paragraph 6 should be replaced with “In that case, the Tribunal has made the decision to remit the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant’s spouse meets cl 602.212 of Schedule 2 to the Regulations.”

Joseph Lindsay
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sergio Daniel Mercado Fernandez

CASE NUMBER:  2105460

HOME AFFAIRS REFERENCE(S):          BCC2021/402918

MEMBER:Joseph Lindsay

DATE:2 December 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 of Schedule 2 to the Regulations.

Statement made on 2 December 2022 at 1:26pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – medical assessment – support person – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 15 March 2021. The delegate refused to grant the visa on 20 April 2021.

2. The delegate made the decision on the basis that evidence of a medical assessment was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. The applicant appeared before the Tribunal on 2 December 2022 to give evidence and present arguments. The applicant’s representative attended the hearing. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. In this case, the applicant is seeking a visa so they may act as a support person for their spouse.

6. The Tribunal has made a decision in respect to the applicant’s spouse (case 2105459). In that case, the Tribunal has made the decision to remit the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant’s spouse meets cl 602.211 of Schedule 2 to the Regulations.

7. Accordingly, the Tribunal accepts that the applicant satisfies the criteria in cl 602.212(4) of Schedule 2 to the Regulations, where the applicant seeks to give emotional and other support to an applicant in relation to whom the requirements described in subclause 602.212 (2) are met.

   decision

8. 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. of Schedule 2 to the Regulations.

   Joseph Lindsay
   Member