Vong (Migration)

[2022] AATA 4706

Vong (Migration) [2022] AATA 4706 (15 December 2022)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sy Muoi Vong

CASE NUMBER:  2106934

HOME AFFAIRS REFERENCE(S):          BCC2017/3000614

MEMBER:Kate Millar

DATE:15 December 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 15 December 2022 at 3:32pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Federal Circuit Court remittal – genuine temporary stay for medical treatment – support person for the applicant’s husband – husband's review application affirmed – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 359
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 Immigration and Border Protection on 24 August 2017 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 August 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 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because she did not meet the requirements to be a support person for her husband, as her husband’s application for a medical treatment visa had been refused.  The delegate found she did not otherwise meet the requirements for the visa.

4. The applicant applied to this Tribunal (differently constituted) for a review of the decision to refuse her application for a Medical Treatment (Visitor) visa and the Tribunal affirmed the decision.  The Court remitted their applications to the Tribunal for rehearing with the consent of the Minister.

5. This is the decision on the rehearing of the applicant’s application for a Medical Treatment (Visitor) (Class UB) visa.    

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 person to whom the applicant seeks to provide support holds a Subclass 602, 675 or 685 visa as required by cl.602.212(4) of Schedule 2 of the Regulations.

8. On 3 November 2022 the Tribunal affirmed the decision to refuse the applicant’s husband a Subclass 602 visa.

9. The information was provided in writing to the applicant under s 359A of the Act.  In response the applicant provided submissions indicating she did not agree with the decision to refuse her husband a subclass 602 visa. 

10. As she had provided a response to the invitation to comment under s 359A of the Act, a hearing was listed for 15 December 2022.

11. On 29 November 2022, the applicant sought an adjournment of this hearing, stating:

    Thank you for giving me an opportunity to "appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments" in relation to my case as the Tribunal is "unable to make a favourable decision on this information alone".

    I however understand that the Tribunal would still be unable to make a favourable decision on my case regardless of whether further evidence is provided by me, due to the following reasons:

    1. My application for a medical treatment visa was made in my capacity as a 'support person'.

    2. The outcome of my visa application is dependent on the outcome of my husband's application for a medical treatment visa which was lodged on the same day.

    3. The Tribunal has already decided to affirm the IMMI Department's decision to refuse my husband's visa application.

    4. It is therefore unrealistic, if not impossible for me to expect that the Tribunal will set aside the IMMI Department's decision to refuse my visa application when it has already affirmed the IMMI Department's decision to refuse my husband's visa application.

    The person who should have given an opportunity to provide further evidence is my husband, not me.

    As my husband is already in the process of lodging an application for judicial review with the Federal Circuit Court, I respectfully request that the Tribunal defer making a decision on my case until such time after my husband's review application has been determined by the Court.

    This would eliminate the need for me to seek a judicial review of the Tribunal's decision.

12. The Tribunal considered this request but declined to adjourn the hearing as an application for review of the decision had not yet been lodged and may take considerable time to be finalised, the matters are inextricably linked and should progress together, and an adjournment could not assist the applicant establish her case unless and until a decision is made by the Federal Circuit and Family Court of Australia. The outcome of this proceeding is not assured. The Tribunal was mindful of the objects in s 2A Administrative Appeals Tribunal Act 1975 to provide a mechanism for review that is fair, just, economical and quick and is proportionate to the importance and complexity of the matter. 

13. On 30 November 2022, the applicant was advised that her request to adjourn the hearing was declined and the hearing would proceed at the listed date and time unless she consented to the Tribunal making a decision on the information before it.

14. No further correspondence was received from the applicant. 

15. The applicant failed to attend the hearing, and the Tribunal proceeded to make a decision on the material before it. 

    Criteria for the visa

16. The criteria for a Subclass 602 visa are set out in Part 602 of Schedule 2 of the Regulations. Clause 602.212 requires an applicant to meet one of the requirements in subclauses (2) to (8). It has not been suggested the applicant can meet the requirements in any subclauses other than subclause (4).

17. Clause 602.212(4) requires that:

    (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.

18. The applicant does not met cl.602.212(4)(b) as the person to whom she is to provide support, her husband, does not hold a Subclass 602, 675 or 685 visa.

19. The applicant does not otherwise meet subclauses (2), (3), (5), (6), (7) or (8). 

20. As the applicant does not meet the requirements in cl.602.212, she does not meet the requirements for the grant of the visa, and the decision under review must be affirmed. 

    decision

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

    Kate Millar
    Senior Member