Sidhar (Migration)

[2017] AATA 3093

Sidhar (Migration) [2017] AATA 3093 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mehtaab Singh Sidhar

CASE NUMBER:  1710307

DIBP REFERENCE(S):  BCC2017/1373914

MEMBER:Melissa McAdam

DATE:18 September 2017

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 18 September 2017 at 1:24pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Minor applicant born in Australia – Healthy child – No arranged medical treatment – Mother wishes to educate her child in Australia

LEGISLATION
Migration Act 1958 ss 65, 351
Migration Regulations 1994 Schedule 2 cl 600.215

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 26 April 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. The applicant applied for the visa on 12 April 2017. 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 (the Regulations).

3. The delegate refused to grant the applicant the visa because the applicant did not meet the requirements of clause 602.215 of Schedule 2 of the Regulations.

4. The applicant is a four year old boy. His mother, Ms Amrit Pal Kaur appeared before the Tribunal on 18 September 2017 to give evidence and present arguments on the applicant’s behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The following is a summary of the information she provided at the hearing:

   a.The applicant is a healthy child apart from suffering travel sickness.

   b.The applicant wants to live in Australia because he was born here and has grown up here.

   c.She and her husband have lived in Australia for the past ten years.

   d.The applicant goes to a child care centre in Australia. He wears a Sikh headband but has not experienced any racism at the centre, so he has freedom of mind here.

   e.Her main motive for the applicant to stay in Australia is so he can get a basic education, which she is willing to pay for.

   f.The applicant cannot speak Punjabi. He speaks English. He can understand Punjabi but does not speak it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. The issue in this case is whether the applicant meets the requirements of clause 602.215.

7. Clause 602.215 reads as follows:

   602.215

   (1)  The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

   (c)  any other relevant matter.

   (2)  However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

8. In the applicant’s Medical Treatment visa application, in answer to the question prompt  ‘I am applying as:’ the box for ‘A person who will undergo medical treatment’ is ticked.  And in answer to the question to describe arranged medical treatment it is written “Dependent on Mum”.

9. On the applicant’s behalf the applicant’s mother gave evidence that the applicant wishes to remain in Australia and to complete his education here.

10. In view of the available evidence the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for a purpose for which the visa is granted.  The Tribunal therefore finds that the requirements of cl.602.215 are not met.

11. 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.

    Section 351 Request

12. The applicant’s mother has requested that the Tribunal refer the applicant’s case to the Department for consideration by the Minister pursuant to s.351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

13. The applicant’s mother put her reasons for compassionate consideration for the applicant, to be her desire for her son to complete his education in Australia, and that Australia is the only country the applicant knows, having been born and lived here all his young life.

14. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). Unfortunately the matters raised do not appear to fall readily within the guidelines. The Tribunal has therefore decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Melissa McAdam
    Member