1705285 (Migration)

This matter concerned an application for a Medical Treatment (Visitor) (Class UB) visa, Subclass 602, made by a citizen of China. The applicant had entered Australia unlawfully on 8 January 2011, using a fraudulent passport. His last substantive visa had ceased in September 2011, leaving him an unlawful non-citizen. More than six years after his unlawful entry, on 14 February 2017, he lodged the application for the medical treatment visa. The Tribunal was required to determine whether the applicant met the criteria for the grant of this visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of Clause 602.213 of the Migration Regulations 1994, which pertains to applicants who do not hold a substantive visa at the time of application. Specifically, the Tribunal had to consider whether the applicant met the additional requirements stipulated in this clause, including the Schedule 3 criteria. A key component of these Schedule 3 criteria, particularly criterion 3001, requires that the visa application be lodged within 28 days of the "relevant day." The Tribunal also considered whether the applicant's claims of persecution, previously refused by the Department and the Refugee Review Tribunal, were relevant to the medical treatment visa application, which the Tribunal determined they were not.

The Tribunal reasoned that for an applicant who entered Australia unlawfully after 1 September 1994 and did not hold a substantive visa at the time of application, the "relevant day" for the purpose of criterion 3001 is the day of unlawful entry. As the applicant entered Australia unlawfully on 8 January 2011 and lodged his application on 14 February 2017, he failed to meet the requirement of lodging the application within 28 days of his unlawful entry. Consequently, he did not satisfy criterion 3001, and therefore did not meet the Schedule 3 criteria necessary for the grant of the visa under Clause 602.213. The Tribunal affirmed the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.