1713558 (Migration)

[2018] AATA 5749

1713558 (Migration) [2018] AATA 5749 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713558

MEMBER:John Billings

DATE:8 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2018 at 1:58pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) visa – holder of relevant substantive visa at time of application – Schedule 3 criteria – application lodged outside of relevant timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 602.213; Schedule 3, Criterion 3001

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 June 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. The [applicant] applied for the visa on 2 June 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 (the Regulations). The delegate refused to grant the visa on the basis that [the applicant] did not satisfy cl.602.213 because at the time he applied for the visa he did hold a relevant substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

3. [The applicant] applied for review on 26 June 2017.  He provided a copy of the primary decision to the Tribunal. 

4. There was no hearing.  On 11 October 2018 the Tribunal sent [the applicant] an invitation to appear before the Tribunal at 12.30 pm on 8 November 2018.  The invitation was sent by email.  The Tribunal’s case management system records that on 31 October and 7 November 2018 the Tribunal sent SMS hearing reminders to the mobile phone number provided by [the applicant].  [The applicant] responded to the hearing invitation, indicating that he would attend the hearing, but he did not attend the Tribunal at the scheduled hearing time.  The Tribunal has received no explanation for that.  The Tribunal refers below to medical evidence that [the applicant] suffers anxiety.  The Tribunal is mindful that it is possible that [the applicant]’s anxiety caused him not to attend the hearing, but there has been no request to postpone the hearing.  The Tribunal also notes that – as set out below – at least at the time he applied for the visa [the applicant] more or less conceded that he was not eligible for the visa.  In all these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking further action to enable [the applicant] to appear before it. 

5. [The applicant] is a [age] year old national of Italy and Albania.  According to the visa application he is married and has been residing in Italy.  [The applicant] arrived in Australia [in] November 2016 holding a Class UD Subclass 601 ETA (Electronic Travel Authority) that ceased on 12 February 2017.  On 14 December 2016 he was granted a Bridging A visa that ceased on 9 May 2017.  On 29 May 2017 he was granted a Bridging C visa. 

6. No medical evidence was submitted to the Department in support of the application.  In the visa application [the applicant] said that he was applying for the Medical Treatment visa so that eventually – after the Tribunal had dealt with his “appeal” – he could bring his personal circumstances to the attention of the Minister.  [The applicant] indicated that he wanted to remain in Australia until August 2017. 

7. There is medical evidence that has been submitted to the Tribunal.  That is a letter by [Dr A] dated 18 October 2018.  [Dr A] states that he has been treating [the applicant] for high blood pressure and anxiety/stress.  [Dr A] expresses the understanding that [the applicant] is due to leave Australia because of the requirements of his visa.  He expresses the opinion that this would be detrimental to [the applicant]’s health at this time.  [Dr A] requests that [the applicant] be granted “an extension to his [v]isa”.  [Dr A] does not say for how long he has treated [the applicant], what the treatment consists of, or for how long he expects the treatment to be required. 

8. In a letter to the Tribunal dated 17 October 2018 [the applicant] states that after he received the hearing invitation his general health including his anxiety and blood pressure worsened.  He says that the initial cause of his condition was a decision made to refuse a Student visa that he had applied for.  He says that the Student visa refusal was caused in part by his then migration agent who failed to advise him about the Department’s request for more information about the application.  That was the issue [the applicant] wanted to bring to the Minister’s attention.  Then the agent did not tell [the applicant] the precise date by which he could seek review of the decision to refuse the Student visa, so [the applicant] missed the chance to do that.  [The applicant] says that he now actually has a medical condition that requires monitoring and treatment before he can consider leaving Australia.  He says that if his review application is not successful it is unlikely that he will “appeal” to the Minister. 

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. The ultimate issue in this case is whether [the applicant] meets the requirements of cl.602.213. 

11. Clause 602.213 applies to applicants who - in particular - are not medically unfit to depart Australia as required by cl.602.212(6), and who were in Australia at the time the visa application was made. It requires that the applicant at that time either held a relevant substantive temporary visa, or if not, that the last substantive temporary visa they held was not a Subclass 403 or 426 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

12. In the present case, [the applicant] does not meet cl.602.212(6), as set out in the attachment to this decision.  [Dr A] has not expressly stated that he is of the opinion that [the applicant] is unfit to travel, but in any event there is no evidence that the required written statement has been made by a Medical Officer of the Commonwealth.  Whatever the case, there are other requirements of cl.602.212(6) that have not been met.  For instance, there is no evidence that [the applicant] ever applied for a permanent visa. 

13. [The applicant] was in Australia at the time of application, he did not hold a substantive temporary visa at that time, and the last such visa he held was not a Subclass 403 or 426 visa. In these circumstances, [the applicant] must meet the Schedule 3 criteria including 3001. 

14. 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 cl.3001(2), as set out in the attachment to this decision.  In this case the relevant day is the last day when Mr               held a substantive visa. 

15. [The applicant]’s last substantive visa was the ETA.  That visa ceased on 12 February 2017.  That was more than three months before he applied for the Medical Treatment visa.  As the visa application was not made within 28 days of the relevant day, [the applicant] does not satisfy criterion 3001.  For these reasons, [the applicant] does not meet the requirements of cl.602.213.

16. Based on these findings, [the applicant] does not meet the requirements for the grant of the visa.  The Tribunal must therefore affirm the decision under review.

17. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. 

18. [The applicant] has not requested the Tribunal to refer his case to the Minister.  The Tribunal is mindful of [Dr A]’s comments, but it does not consider that this is an appropriate case to refer to the Minister.  In particular, the medical and other evidence does not go so far as to indicate that the case has unique or exceptional circumstances such as compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person. 

19. While the Tribunal will not refer the case to the Minister, [the applicant] is able to request the Minister to intervene.  And [the applicant] would be able to put forward further evidence in the event that he makes a request. 

    DECISION

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

    John Billings
    Senior Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 2

    602.212 (1)     The requirements in one of subclauses (2) to (8) are met …

    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 …

    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.