Sidhar (Migration)

[2020] AATA 5586

Sidhar (Migration) [2020] AATA 5586 (26 November 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mehtab Singh Sidhar

CASE NUMBER:  1817438

DIBP REFERENCE(S):  BCC2018/2015334

MEMBER:Louise Nicholls

DATE OF DECISION:  26 November 2020

DATE CORRIGENDUM

SIGNED:28 January 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

First dot point in paragraph number 3 should be read as “Photocopy of the biodata page of the applicant’s Indian passport issued in September 2016” not issued on 6 March 2008; 

and

Second dot point in paragraph number 3 should be read as “Form 1507 (Evidence of intended medical treatment) completed by Dr Jalal Qamar dated 1 May 2018 relating to the applicant’s mother medical condition and proposed treatment” not applicant’s wife medical condition and proposed treatment.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mehtab Singh Sidhar

CASE NUMBER:  1817438

DIBP REFERENCE(S):  BCC2018/2015334

MEMBER:Louise Nicholls

DATE:26 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 26 November 2020 at 4:50pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Australian-born child as support person for mother needing medical treatment – no evidence of mother being granted relevant visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 602.212(4)

statement of decision and reasons

application for review

1. The applicant is 7 years old and was born in Australia. He and his parents are citizens of India. His parents first arrived in Australia in 2008 as the holder of student visas.

2. The applicant has applied, through his parents, for a Medical Treatment (Visitor) (Class UB) visa on 8 May 2018. His parents have also applied for medical treatment visas; his mother on the basis that she needs medical treatment and his father as a support person.

3. The applicant provided a

   ·Photocopy of the biodata page of the applicant’s Indian passport issued on 6 March 2008.

   ·Form 1507 (Evidence of intended medical treatment) completed by Dr Jalal Qamar dated 1 May 2018 relating to the applicant’s wife medical condition and proposed treatment.

4. On 29 May 2018 a delegate of the Minister for Home Affairs refused to grant the applicant a Medical Treatment (Visitor) (Class UB) under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa because the delegate was not satisfied that the applicant met the requirements for “support person” set out in cl.602.212(4) of the Migration Regulations 1994 (the Regulations). The delegate also found that the applicant did not meet any of the alternative sub-clauses of cl.602.212.

5. On 9 March 2020 the Tribunal wrote to the applicant and invited him to provide information. The invitation noted that he had not provided an answer to Q. 16 of the application form which asked in which capacity he was applying for a medical treatment visa. He was asked whether he was applying for a medical treatment as a support person as set out in cl.602.212 (4) of the of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. On 21 March 2020 the applicant’s representative responded to the invitation with information regarding the applicant’s mother’s application but also noted that if the applicant’s mother was granted a Subclass 602 visa the applicant’s father and the applicant would be eligible for medical treatment visas as support persons.

7. This is an application for review of that decision, and it was made on 14 June 2018. The applicant provided a copy of the delegate’s decision with the application.

8. The Tribunal conducted a combined hearing of the applications of the applicant and his parents on 6 November 2020. The applicant did not attend the hearing and the applicant’s parents gave evidence on his behalf.

9. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

10. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION

11. 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). 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 the requirements in cl.602.212 which is an essential requirement for the visa.

12. The applicant is seeking to meet the requirements as a “support person”. 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.

    Background

13. The applicant is 7 years old and was born in Sydney, Australia. His parents married on 23 August 2008 in India.

14. He has an Indian passport which was issued on 19 September 2016.

15. His mother has been his full-time carer and his father has been working in the construction industry as a labourer since he finished his studies. His parents gave evidence that his mother has been unwell since he was born.

    Does the applicant meet the requirements for a support person (or the alternative requirements)?

16. Clause 602.212, as extracted in the attachment to this 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. To meet the requirements as a support person the applicant must meet the requirements of cl.602.212(4) as set out above.

17. The applicant’s mother claimed that she needs medical treatment and has applied for a medical treatment visa. The applicant’s parents state that the applicant is part of their family unit and as such is a support person within the context of the medical treatment requirements for the period of time which his mother requires medical treatment.

18. However, the issue for the Tribunal is whether the applicant meets the requirements of cl.602.212(4). There is no evidence that the applicant’s mother has been granted a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met. There is no evidence that his mother has been granted a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) are met or 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. Accordingly, the applicant does not meet the requirements of cl.602.212 (4).

19. The Tribunal has also considered the alternative sub criteria in cl.602.212.

    ·There is no evidence or claim that the applicant is seeking to obtain medical treatment for himself or that arrangements have been concluded to carry out such treatment: cl.602.212(2).

    ·There is no evidence or claim that the applicant seeks to donate an organ for transplant in Australia: cl.602.212(3).

    ·There is no evidence or claim that the applicant is a citizen of Papua New Guinea: cl.602.212(5).

    ·There is no evidence that the applicant has turned 50 years and is medically unfit to depart Australia: cl.602.212(6).

    ·There is no evidence that the applicant meets the requirements in cl.602.212 (7). He does not hold either a Subclass 602 visa; or a Subclass 675 (Medical Treatment (Short Stay)) visa; or a Subclass 685 (Medical Treatment (Long Stay)) visa.

    ·There is no evidence that the applicant meets the requirements in cl.602.212 (8). He does not meet the requirements in either cl.602.212 (2)(a)-(c), or(3)(a)-(b), or (4)(a)-(b), or (5), or (6) (a)–(b) and thus cannot meet the requirements of this sub paragraph.

20. A number of documents have been provided which address the issues in the applicant’s mother’s application for a medical treatment visa. The documents provide context to the applicant’s claims and may be relevant to several issues in his mother’s application for a medical treatment visa. However, they do not address the issue in the applicant’s case, which is, whether he meets the requirements of “support person” in cl.602.212(4) or the alternative sub paragraphs.

21. Given the above findings, the requirements in cl.602.212(2) to (8) are not met.

    Conclusion

22. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed and the requirements in cl.602.212 are not met.

    decision

23. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

    Louise Nicholls
    Senior Member