Ramaya (Migration)

[2023] AATA 3471

Ramaya (Migration) [2023] AATA 3471 (9 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Devina Ramaya

CASE NUMBER:  2213339

HOME AFFAIRS REFERENCE(S):          BCC2022/2658016

MEMBER:Mara Moustafine

DATE:9 September 2023

PLACE OF DECISION:  Sydney

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) of Schedule 2 to the Regulations

Statement made on 09 September 2023 at 3:43pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – a support person to her husband – husband does hold a Subclass 602 Medical Treatment visa  -– 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 on 19 August 2022 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 13 July 2022 as a support person for her husband, Mr Prakesh Ramaya (Case No. 2213200), who was seeking treatment for a shoulder reconstruction. 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 he was not satisfied that she met cl.602.212(4) because her husband, whom she was intending to support, did not hold a Medical Treatment visa.

4. The applicant appeared before the Tribunal by videoconference on 15 August 2023 to give evidence and present arguments. As the applicant had applied for a Medical Treatment visa as a support person for her husband, with the agreement of both applicants, the Tribunal held a combined hearing of their matters.

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. The issue in this case is whether the applicant, as a support person to her husband, meets cl 602.212(4) of Schedule 2 of the Migration Act.

7. Relevantly to this matter cl. 602.212(4) provides:

   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.

   Are the medical treatment requirements met?

8. Clause 602.212(4), as extracted in the attachment to this decision, requires the applicant to seeks to give emotional and other support to an applicant who holds a Subclass 602 Medical Treatment visa. In this case, the applicant seeks to give emotional and other support to her husband, who has applied for a Medical Treatment visa.

9. In a separate decision, the Tribunal has remitted the application of the applicant’s husband 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 602.215 of Schedule 2 of the Regulations. 

10. Therefore the Tribunal is satisfied that the applicant meets cl 602.212(4) as her husband does hold a Subclass 602 Medical Treatment visa.

11. Given the above findings, the requirements in cl 602.212(4) are met.

12. 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

13. 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) of Schedule 2 to the Regulations.

    Mara Moustafine
    Member