Suri (Migration)

[2022] AATA 1294

Suri (Migration) [2022] AATA 1294 (14 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zuleeza Bt Suri

REPRESENTATIVE:  Mr Mosutafa Awad

CASE NUMBER:  2118119

HOME AFFAIRS REFERENCE(S):          BCC2018/2201217

MEMBER:Nora Lamont

DATE:14 April 2022

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations.

Statement made on 14 April 2022 at 11:22am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – motor vehicle accident – medical evidence provided – payment of all treatment costs – 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 24 November 2021 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 21 May 2018. 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 as they were not satisfied that the applicant met cl.602.212 of the Migration Regulations.

4. The applicant appeared before the Tribunal on 21 March 2022 at 2pm to give evidence and present arguments. The Tribunal held a combined hearing for all five applicants within the family. The applicant was represented in relation to the review.

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 has ongoing medical needs that require her to remain in Australia for medical treatment.

7. Clause 602.212 requires:

   (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.

8. The applicant was in a serious car accident in 2012 that claimed the life of one of her sons and seriously injured herself, her husband and her other children. The applicant suffers from depression and is on anti-depressants. She has ongoing psychological issues and must deal with the death of her child and the serious injuries of her other children and husband. She has ongoing physical issues with back pain and her left arm does not work properly.

9. The applicant has not attempted to apply for other types of visas to enhance their chances of staying onshore and have made no indication they wish to remain in Australia permanently. It is apparent to the Tribunal that the applicant has ongoing medical needs that can be met in the short-term allowing her to recover and return to Singapore.

10. The Tribunal received medical documentation related to the applicant’s medical appointments and the medications she is on.[1]

    [1] AAT Folio

11. The applicant and her family have a community of friends in Australia who continue to support them in their recovery.

12. The applicant clearly meets 602.212 (a) --( the applicant seeks to obtain medical treatment (including consultation), (b)-- arrangements have been concluded to carry out the treatment; (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.

13. For these reasons cl 602.212 is met.

14. 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

15. 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 of Schedule 2 to the Regulations.

    Nora Lamont
    Member