Pathirannehelage (Migration)

[2023] AATA 2188

Pathirannehelage (Migration) [2023] AATA 2188 (20 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Palinda Siriwardana Pathirannehelage

REPRESENTATIVE:  Ms Madhu Warnakulasuriya

CASE NUMBER:  2300750

HOME AFFAIRS REFERENCE(S):          BCC2021/1477200

MEMBER:Nathan Goetz

DATE:20 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision of the delegate on 3 January 2023 refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa and remits the visa application back to the delegate for reconsideration of the visa with the following direction:

·If the applicant’s wife is granted a Subclass 602 visa, the applicant will meet cl.602.212(4)(a) of Schedule 2 to the Regulations for a Subclass 602 visa.

Statement made on 20 June 2023 at 11:45am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – applicant is supporting his wife while she receives medical treatment in Australia – Tribunal set aside the decision refusing to grant the applicant’s wife a medical treatment visa – wife’s visa application is ongoing – decision under review remit

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 under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa.

2. The applicant was represented in the review by an Australian legal practitioner.

   BACKGROUND

3. The applicant identifies as a male citizen of Sri Lanka presently located in Australia. On 5 May 2017 the applicant last arrived in Australia holding a student visa which expired on 30 September 2017. He has remained in Australia to date.

4. On 28 August 2019 the applicant and his wife applied for a confirmatory residence visa. On 6 September 2019 the delegate refused to grant the applicants those visas. The applicant and his wife applied to the Tribunal for review of that decision. On 23 November 2020 the Tribunal affirmed the decision to refuse to grant the visas: AAT case 1927059.

5. On 27 June 2021 the applicant’s wife applied for a medical treatment visa on the basis that she was seeking to obtain medical treatment in Australia per cl 602.212(2) of Schedule 2 to the Regulations. That same day, the applicant applied for a medical treatment visa on the basis that he was seeking to give emotional and other support to his wife: cl 602.212(4) of Schedule 2 to the Regulations.

6. On 6 August 2021 the delegate refused to grant the applicant’s wife the medical treatment visa on the basis that the applicant’s wife did not genuinely intend to stay temporarily in Australia for the purpose of medical treatment and therefore failed to satisfy cl 602.215 of Schedule 2 to the Regulations. That same day, the delegate refused to grant the applicant a medical treatment visa on the basis that he did not satisfy cl 602.212(4) of Schedule 2 to the Regulations, or any other subclause of cl 602.212 of Schedule 2 to the Regulations.

7. On 24 August 2021 the applicant and his wife applied to the Tribunal for review of the delegate decisions. On 23 November 2022 the Tribunal set aside the decision refusing to grant the applicant’s wife the visa and remitted it back to the delegate for reconsideration with a direction that the applicant’s wife satisfied cl 602.215 of Schedule 2 to the Regulations: AAT 211119. That same day, the Tribunal set aside the decision refusing to grant the applicant the visa and remitted it back to the delegate for reconsideration with a direction that, if the applicant’s wife was granted the visa, the applicant would satisfy cl 602.212(4)(a) of Schedule 2 to the Regulations: AAT 2111117.

8. On 3 January 2023 the delegate refused to grant the applicant’s wife a medical treatment visa on the basis that she did not satisfy cl 602.216 of Schedule 2 to the Regulations. That same day, the delegate refused to grant the applicant a medical treatment visa on the basis that the applicant did not satisfy cl 602.212(4) of Schedule 2 to the Regulations, or any other subclause of cl 602.212 of Schedule 2 to the Regulations.

9. On 20 January 2023 the applicant and his wife applied to the Tribunal for review of the delegate decisions. It is the delegate decision concerning the applicant that is the subject of this decision record.

10. On 29 May 2023 the Tribunal wrote to the applicant under s 360(1) of the Act and invited him to appear at a Tribunal hearing scheduled for 10:00am on 20 June 2023. That same day, the Tribunal wrote to the applicant’s wife under s 360(1) and invited her to appear at a Tribunal hearing scheduled for the same time and date. The Tribunal determined that as the visa applications were related, it was appropriate to conduct a joint Tribunal hearing. T

11. On 20 June 2023 the applicant appeared at the Tribunal hearing via MS Teams. The Tribunal determined that an appearance by MS Teams was appropriate in all the circumstances.

    CRITERIA FOR THE MEDICAL TREATMENT VISA

12. To be granted a medical treatment visa, the applicant must satisfy one of the subclauses of cl 602.212 of Schedule 2 to the Regulations. The applicant did not submit that he met any subclause other than cl 602.212(4) of Schedule 2 to the Regulations.

    Support person

    (4)  All of the following requirements are met:

    (a)  the applicant seeks to give emotional and other support to an applicant in relation to whom:

    (i)  the requirements described in subclause (2) or (3) are met; or

    (ii)  the requirements described in subclause 675.212(2) or (3) are met; or

    (iii)  the requirements described in subclause 685.212(2) or (3) are met;

    (b)  the person to whom the applicant is to provide support holds:

    (i)  a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or

    (ii)  a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or

    (iii)  a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;

    (c)  the applicant satisfies public interest criterion 4005.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. According to the visa application made by the applicant on 27 July 2021, the applicant is married and providing support to his wife who is in Australia and seeking a medical treatment visa. He provided the transaction reference number for her visa application, as well as the completed Form 1507 signed by Sandra Pucci on 26 July 2021 advising that the applicant’s wife had PTSD, depression, anxiety panic disorder and physical issues. The medical treatment was detailed as weekly counselling sessions.

14. He did not claim to meet any of the subclauses of cl 602.212 of Schedule 2 to the Regulations, other than cl 602.212(4) of Schedule 2 to the Regulations. To that end, whether the applicant meets the requirements for the medical treatment visa is solely dependent on whether his wife satisfies cl 602.212(2) or (3) as she has applied for a 602 visa, and that she holds a medical treatment visa.

15. On 20 June 2023, following the conclusion of a Tribunal hearing, the Tribunal set aside the decision refusing to grant the applicant’s wife a medical treatment visa, and remitted the visa application back to the delegate for reconsideration of the visa application, making directions that the applicant’s wife satisfied cl 602.216 of Schedule 2 to the Regulations: AAT 2300749.

    FINDINGS AND REASONS

16. The issue is whether the applicant seeks to give emotional and other support to his wife and that his wife meets the requirements of either cl 602.212(2) or (3) of Schedule 2 to the Regulations and that she holds a medical treatment visa on that basis.

17. The applicant did not claim, and nor is there any evidence to support, a finding that the applicant meets any of the other criteria in cl 602.212 of Schedule 2 to the Regulations.

18. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

19. It is true that the applicant’s wife does not currently hold a medical treatment visa. However, she has an ongoing medical treatment visa application and if that visa were granted, the applicant would satisfy cl 602.212(4) because she would be providing emotional and other support to his wife.

20. A determination about whether the applicant can satisfy that criterion is entirely dependent on whether his wife is granted the medical treatment visa or not. Given that her visa application is ongoing because it needs to be reconsidered by the delegate in light of the Tribunal’s findings, it would be inefficient for the Tribunal to delay making a decision in the applicant’s review until a delegate made a decision on his wife’s review. For administrative convenience, it is proper for both the applicant’s visa application and his wife’s visa application to be before the same decision-maker so that a decision can be made on both of those visa applications at the same time.

    DECISION

21. The Tribunal sets aside the decision of the delegate on 3 January 2023 refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa and remits the visa application back to the delegate for reconsideration of the visa with the following direction:

    ·If the applicant’s wife is granted a Subclass 602 visa, the applicant will meet cl.602.212(4)(a) of Schedule 2 to the Regulations for a Subclass 602 visa.

    Nathan Goetz
    Member