Sarath (Migration)

[2019] AATA 5380

Sarath (Migration) [2019] AATA 5380 (6 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Lekshmi Sarath

CASE NUMBER:  1720901

DIBP REFERENCE(S):  CLF2017/28215

MEMBER:Justine Clarke

DATE:6 August 2019

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) and (b) of Schedule 2 to the Regulations

Statement made on 06 August 2019 at 4:15pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – support person – daughter granted a Medical Treatment visa – provision of emotional and other support to daughter – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration on 17 August 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. On 7 August 2017, the applicant applied for the visa. At the time of this decision, the applicant is a 35 year old national of India.

3. At the time of application, 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 (the Regulations).

4. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the applicant the visa because the applicant did not meet cl.602.212. With respect to cl.602.212(4), the delegate noted that the applicant had applied as a support person for her daughter Aathmika Sarath. (At the time of this decision, Aathmika is six years of age). The delegate noted that, at the time of the primary decision, Aathmika 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.  

5. On 7 September 2017, the applicant’s husband and Aathmika’s father, Mr Sarath Vijayan Nair, applied for review on behalf of Aathmika in respect of a delegate’s decision to refuse to grant her a Medical Treatment (Visitor) (Class UB) visa (AAT case number 1720893 ‘Aathmika’s case’).

6. Similarly to the applicant, Mr Nair had also applied for a Medical Treatment (Visitor) (Class UB) visa on the basis that he was seeking to give emotional and other support to Aathmika. A delegate of the Minister also refused his application for a visa and he also sought review of that decision in the Tribunal (AAT case number 1720899).

7. On 3 October 2018, at the hearing, the applicant and Mr Nair (who also gave oral evidence on behalf of Aathmika) agreed to the Tribunal conducting the three reviews concurrently.

8. On 15 January 2019, the Tribunal made a decision in Aathmika’s case, remitting Aathmika’s application for a Medical Treatment (Visitor) (Class UB) visa with the direction that she meets cl.602.215 of Schedule 2 to the Regulations.

9. Due to subsequent events, the then presiding Member (a Senior Member of the Tribunal) was not available to finalise the review.

10. Subsequently, the matter was constituted to the current presiding Member.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 meets cl.602.212(4) or any of the other subclauses.

    Are the requirements of cl.602.212 met?

13. Clause 602.212, which was extracted in the primary decision, requires the applicant to meet one of the seven alternative sub criteria in cl.602.212(2)–(8). These relate to the basis for which the stay in Australia is required. 

14. At the hearing, the applicant gave oral evidence that she is a support person for Aathmika. The Tribunal has no reason to doubt the veracity of this evidence.  

15. On 15 January 2019 (which was the same day that the Tribunal made its decision in Aathmika’s case), the Tribunal wrote separately to both the applicant and Mr Nair. The key part of each letter is as follows:

    Your and your spouse’s applications depend on your daughter holding a Medical Treatment visa.

    The Tribunal will consider your applications further if and when your daughter is granted a Medical Treatment visa. Please notify the Tribunal in that event and provide to the Tribunal a copy of any letter you receive from the Department of Home Affairs confirming the grant of a visa to your daughter.    

16. The applicant did not provide the documentary evidence requested. However, on 6 August 2019, at the direction of the presiding Member, an officer of the Tribunal undertook a search of the Department’s ICSE records with respect to Aathmika. These records evidence Aathmika as having been granted a Subclass 602 Medical Treatment visa on 18 July 2019 which is in effect until 31 October 2019.   

17. As the Tribunal accepts the claims that the applicant seeks to give emotional and other support to Aathmika and is satisfied that Aathmika holds a Medical Treatment visa on the basis that she has the condition vitiligo (a skin condition where patches of skin become pale) which requires phototherapy and depigmenting, the Tribunal is satisfied that cl.602.212(4)(a) and (b) of Schedule 2 to the Regulations are met.

18. 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

19. 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) and (b) of Schedule 2 to the Regulations.

    Justine Clarke
    Member