1608064 (Migration)

[2016] AATA 4875

1608064 (Migration) [2016] AATA 4875 (14 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dineshkumar Joitabhai Chaudhari

CASE NUMBER:  1608064

DIBP REFERENCE(S):  BCC2016/1746890

MEMBER:Susan Trotter

DATE:14 September 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 14 September 2016 at 9:05am

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Substantive visa ceased – Lodged out of time

LEGISLATION
Migration Act 1958, ss 65, 359, 359C, 360
Migration Regulations 1994, Schedule 2 cl 602.213, Schedule 3 3001

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 19 May 2016 to refuse to grant the applicant, Mr Dineshkumar Chaudhari, a Medical Treatment (Visitor) (Class UB) visa under section 65 of the Migration Act 1958 (the Act).

2. Mr Chaudhari applied for the visa on 16 May 2016 and is currently 38 years of age. 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 Mr Chaudhari the visa because his visa application was received on 16 May 2016, more than 28 days after Mr Chaudhari’s last substantive visa had ceased, and criterion 3001 of Schedule 3 to the Migration Regulations 1994 (the Regulations) was therefore not met as required.

4. Mr Chaudhari lodged an application for review of the delegate’s decision with the Tribunal on 3 June 2016.

5. The Tribunal wrote to Mr Chaudhari on 30 August 2016, pursuant to subsection 359(2) of the Act, inviting him to provide information addressing the requirement to meet the criterion specified in item 3001 of Schedule 3 to the Regulations. The invitation was sent to the last email address provided by Mr Chaudhari and Mr Chaudhari was advised that, if the information was not provided in writing by 13 September 2016, and no extension of time had been granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and that Mr Chaudhari would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. Mr Chaudhari failed to provide that information within the prescribed time for responding to the statutory invitation. The power to formally invite, in writing, an applicant to give information under subsection 359(2) of the Act has been exercised. Certain consequences flow from the failure of the applicant to respond to the invitation. These consequences were set out in the body of the letter to Mr Chaudhari on 30 August 2016.

7. Having not provided the information requested in the subsection 359(2) invitation, Mr Chaudhari loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: section 360(3) of the Act.

8. The Tribunal may now make a decision on the review without taking any further action to obtain the information: subsection 359C(1) of the Act. The Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information given that the Tribunal is satisfied that Mr Chaudhari has been given a reasonable opportunity to address an essential requirement for the grant of the visa, criterion 3001, and has not done so.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. The criteria for the medical treatment visa include clause 602.213 which applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not over 50 years of age and medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa, and that the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision, are met.

12. As noted in the delegate’s decision, a copy of which was provided by Mr Chaudhari with his application to the Tribunal, Mr Chaudhari lodged the application for this visa in Australia on 16 May 2016 and did not hold a substantive visa at the time, his last substantive visa having ceased on 30 August 2012. Mr Chaudhari is 38 years of age and therefore cannot meet clause 602.212(6). On the basis of the information contained in the delegate’s decision record, the Tribunal is also satisfied that Mr Chaudhari did not hold a substantive visa at the time of the visa application, and the last such visa that he held was a Subclass 572 visa and not a Subclass 403 or 426 visa. In these circumstances the issue in this case is whether Mr Chaudhari satisfies criterion 3001 of Schedule 3 to the Regulations.

    Is criterion 3001 met?

13. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision, and in this case is 30 August 2012, the date upon which Mr Chaudhari’s last substantive visa ceased, as is noted in the delegate’s decision. The application for the visa on 16 May 2016 was not within 28 days of 30 August 2012. On the evidence before the Tribunal, Mr Chaudhari lodged an application for this visa more than 28 days after his last substantive visa ceased. Mr Chaudhari therefore does not satisfy criterion 3001 of Schedule 3 to the Regulations for the purposes of clause 602.213 of Schedule 2 to the Regulations. There is therefore no need for the Tribunal to consider the remaining Schedule 3 criteria.

14. Based on the findings above, Mr Chaudhari does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    DECISION

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

    Susan Trotter
    Member

    ATTACHMENT

    Schedule 3

    3001 (1)     The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)     For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)the last day when the applicant held a substantive or criminal justice visa; or

    (iv)the day when the applicant last entered Australia unlawfully; or

    (d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)the day when that last substantive visa ceased to be in effect; and

    (ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    3003If:

    (a)     the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)    on 31 August 1994, the applicant was either:

    (i)an illegal entrant; or

    (ii)the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)     the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

    (d)    there are compelling reasons for granting the visa; and

    (e)     the applicant has complied substantially with the conditions that apply or applied to:

    (i)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)any subsequent bridging visa; and

    (f)     the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004If the applicant:

    (a)     ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)    entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)     the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

    (d)    there are compelling reasons for granting the visa; and

    (e)     the applicant has complied substantially with:

    (i)the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)     either:

    (i)in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)    the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)    if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

    (a)     this Schedule; or

    (b) Schedule 6 of the Migration (1993) Regulations; or

    (c)     regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

    Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non‑citizen when he or she was born shall be taken to have entered Australia when he or she was born.