Singchart (Migration)

Singchart (Migration) [2023] AATA 455 (20 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Hafizah Binte Syed Ismail
CASE NUMBER: 2205579

MEMBER:Member Nathan Goetz
DATE:20 February 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Medical Treatment (Visitor) (class UB) visa.
DIRECTION: The Tribunal directs under s 378(1) of the Migration Act 1958 (Cth) in relation to this review that information that would identify the applicant must not be published by the Tribunal.
The Tribunal is satisfied it is in the public interest that this material is not published because it may identify that the applicant has previously made an application for a protection visa (noting a number of provisions in the Migration Act 1958 (Cth) restrict publishing material that identifies protection visa applicants, e.g., ss 91X, 431 and 501K).

Statement made on 20 February 2023 at 11:32am
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – support person for family member undergoing medical treatment – applicant’s wife did not hold a Medical Treatment visa – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.216
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa.
The applicant was represented in the review by an Australian legal practitioner.
BACKGROUND
The applicant identifies as [age]-year-old male citizen of Thailand presently located in Australia with his wife, who is a female citizen of Thailand also located in Australia. He last arrived in Australia [in] August 2018 holding a [student] visa which cased on 29 May 2019.
On 22 March 2022 both the applicant and his wife made applications for medical treatment visas. His wife applied for the medical treatment visa on the basis that she was staying in Australia for medical treatment. The applicant applied for the medical treatment visa on the basis that he was staying in Australia to support her: cl 602.212(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 23 March 2022 the delegate refused to grant each applicant the visa. The delegate was not satisfied that the applicant’s wife met cl 602.216 of Schedule 2 to the Regulations and was not satisfied that the applicant met cl 602.212 of Schedule 2 to the Regulations.
On 14 April 2022 the applicant and his wife each applied to the Tribunal for review of the decision.
On 16 February 2023 the applicant appeared at a Tribunal hearing. The Tribunal held a joint hearing with the applicant’s wife who had also sought a review of a decision to refuse to grant her a medical treatment visa: AAT 2205599. The Tribunal decided to hold these hearings together because the visa applications were related.
The Tribunal hearing was held via the MS Teams. The Tribunal determined that an audio-visual hearing was appropriate because the applicant resided in regional Victoria, the representative was located in New South Wales, and the Member was based at the Melbourne registry of the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Thai languages.
CRITERIA FOR THE VISA
602.212
(1) The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2) All of the following requirements are met:
(a) the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b) arrangements have been concluded to carry out the treatment;
(c) if the treatment is an organ transplant:
(i) the donor of the relevant organ is accompanying the applicant to Australia; or
(ii) all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d) the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e) arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant's stay in Australia, including the expenses of any person accompanying the applicant;
(f) either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii) evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3) All of the following requirements are met:
(a) the applicant seeks to donate an organ for transplant in Australia;
(b) if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c) the applicant satisfies public interest criterion 4005;
(d) arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant's stay in Australia, including the expenses of any person accompanying the applicant;
(e) either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii) evidence is produced that the relevant government authority has approved the payment of those costs.
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.
Western Province of Papua New Guinea
(5) All of the following requirements are met:
(a) the applicant is a citizen of Papua New Guinea;
(b) the applicant resides in the Western Province of Papua New Guinea;
(c) the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
Unfit to depart
(6) All of the following requirements are met:
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c) the applicant has applied for a permanent visa while in Australia;
(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e) the applicant has been refused the visa;
(f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Financial hardship
(7) All of the following requirements are met:
(a) one of the following applies:
(i) the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii) the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii) the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv) the requirements described in subclause (5) are met in relation to the applicant;
(v) the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b) the applicant is in Australia;
(c) the applicant holds:
(i) a Subclass 602 visa; or
(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d) the applicant is suffering financial hardship as a result of changes in the applicant's circumstances after entering Australia;
(e) the applicant, or a member of the applicant's immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f) the applicant, or a member of the applicant's immediate family, cannot leave Australia for reasons beyond his or her control;
(g) the applicant has compelling personal reasons to work in Australia;
(h) the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8) All of the following requirements are met:
(a) one of the following applies:
(i) the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii) the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii) the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv) the requirements described in subclause (5) are met in relation to the applicant;
(v) the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b) the applicant is in Australia;
(c) the applicant has compelling personal reasons for the grant of the visa;
(d) the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).
CONSIDERATION OF EVIDENCE
In the visa application form, the applicant claimed that the purpose of his stay in Australia was ‘supporting a person who either holds, or is applying for, a medical treatment visa for either medical treatment / consultation or donating an organ in Australia.’
He provided the reference for his wife’s medical treatment visa application. His wife’s medical treatment visa application detailed that her medical treatment was for depression. Her treatment information was detailed in Form 1507 as medication – commenced. Counselling – provided referral for mental health care plan.’
The applicant claimed that the only criteria for the medical treatment visa he met was cl 602.212(4) of Scheduled 2 to the Regulations, namely he was a support person.
At the Tribunal hearing, the Tribunal discussed with the applicant the fact that his wife did not hold a medical treatment visa. As she did not hold a medical treatment visa, the applicant could not satisfy cl 602.212(4)(b) of Schedule 2 to the Regulations, which meant that he failed to satisfy cl 602.212(4) in its entirety.
The Tribunal also observed that the applicant’s wife’s visa had been refused under cl 602.216 of Schedule 2 to the Regulations, and not under cl 602.212(2) or (3) of the Regulations. This meant that the Tribunal would not be conducting a review of his wife’s visa refusal concerning cl 602.212(2) or (3) of the Regulations. If that criteria was under review, and the applicant’s wife satisfied either cl 602.212(2) or (3), then the Tribunal would have been able to find that the applicant meet cl 602.212(4)(a)(i) and remit the visa application back to the delegate with a direction on those terms.
As the Tribunal was not conducting his wife’s review on the basis that she failed to meet cl 602.212(2) or (3), it was impossible for the applicant to satisfy cl 602.212(4) of Schedule 2 to the Regulations because no finding had been made by a delegate that his wife met cl 602.212(2) or (3), nor was the Tribunal considering this criterion in his wife’s review.
At the Tribunal hearing, the applicant conceded that he did not meet the criteria under cl 602.212 of Schedule 2 to the Regulations.
FINDINGS AND REASONS
The issue in the present case is whether the applicant satisfies cl 602.212 to Schedule 2 to the Regulations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Specifically concerning the criteria upon which the visa application was made (namely a support person), the fact is that the applicant’s wife is/was an applicant for a medical treatment visa. She has not been granted a medical treatment visa, nor has any finding been made that she satisfies criteria in cl 602.212(2) or (3) of Schedule 2 to the Regulations for the purpose of the applicant being able to demonstrate that he satisfies cl 602.212(4) on the basis of cl 602.212(4)(a)(i).
The applicant conceded that he did not satisfy any of the criteria for cl 602.212 of Schedule 2 to the Regulations. There is no evidence to suggest that he would satisfy any of those remaining criteria.
Therefore, the applicant does not satisfy cl 602.212 of Schedule 2 to the Regulations.
DECISION
The Tribunal affirms the decision to refuse to grant the applicant a Medical Treatment (Visitor) (class UB) visa.
Nathan Goetz
Member

[2023] AATA 455

20 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice