Patel (Migration)

[2023] AATA 228

Patel (Migration) [2023] AATA 228 (13 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Bhumika Ghanshyambhai Patel

CASE NUMBER:  2114641

HOME AFFAIRS REFERENCE(S):          BCC2021/1867576

MEMBER:Joseph Lindsay

DATE:13 January 2023

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 602.216 of Schedule 2 to the Regulations.

Statement made on 13 January 2023 at 2:14pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant is currently still receiving medical treatment– Tribunal is satisfied that the applicant has sufficient funds to cover the cost of medical treatment – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 602.216

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 30 September 2021 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 29 September 2021. 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 applicant participated in a video hearing with the Tribunal on 10 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The applicant’s spouse, Ghanshyambhai Ramabhai Patel, was also present in the hearing.

4. For the purposes of clarity, the applicant’s spouse has also applied for a Medical Treatment (Visitor) (class UB) Medical Treatment (Support Person) (subclass 602) visa. The department refused his application because his wife’s visa application was refused. The applicant’s spouse also made application to the Tribunal for review of the Department’s decision (case 2114643).   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The Tribunal has considered a copy of the delegate’s decision, as the applicant provided to the Tribunal. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had sufficient funds to cover the cost of medical treatment as well as living expenses in Australia and was therefore not satisfied that the applicant met subclause 602.216 of the Regulations. 

8. At the time of the delegate’s decision, the applicant disclosed that they had $8538 in savings.

9. In the hearing, the Tribunal discussed these issues with the applicant. The applicant, assisted by her spouse, provided evidence about her health situation. As evidenced by the letter from her treating neurologist, Dr Richard Gerraty, dated 21 July 2021, the applicant has been treated for seizures. The letter indicates that the applicant has atrophy of her cerebellum. The letter indicates that the applicant has previously taken Phenytoin. Evidence was provided that the applicant is no longer taking Phenytoin but is now taking Keppra.

10. After the hearing, the applicant provided updated financial information, indicating that she now has access to about $19600 in savings and that her spouse is currently employed.

    Analysis and Findings

11. The Tribunal has carefully considered the information made available to the Tribunal and makes the following findings.

12. The Tribunal accepts the applicant is currently still receiving medical treatment, and that she seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes. Accordingly, the Tribunal is satisfied that the applicant meets subclause 602.211 of the Regulations. 

13. In respect to her access to her financial situation, the Tribunal accepts that the applicant now has access to about $19600 in savings and that her spouse is currently employed. Accordingly, the Tribunal is satisfied that the applicant has sufficient funds to cover the cost of medical treatment as well as living expenses in Australia. The Tribunal is satisfied that the applicant meets subclause 602.216 of the Regulations. 

    DECISION

14. 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 602.216 of Schedule 2 to the Regulations.

    Joseph Lindsay
    Member