ARORA (Migration)

[2016] AATA 4898

ARORA (Migration) [2016] AATA 4898 (17 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss RIYA ARORA

CASE NUMBER:  1608203

DIBP REFERENCE(S):  BCC2016/1727728

MEMBER:Christian Carney

DATE:17 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2016 at 5:38pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – No details of medical treatment provided – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth) Schedule 2 cls 600.212, 602.213 Schedule 3 item 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 16 May 2016 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 13 May 2016. 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 applicant the visa because the applicant did not satisfy the criteria in cl.602.213, as she did not hold a substantive visa at the time of application and the application was not made within 28 days of when her last substantive visa ceased.

3. The applicant appeared before the Tribunal on 17 October 2016 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 meets clause 602.213.

6. Clause 602.213 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 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 are met.

7. The applicant in this case is a 21 year old national of India.  She did not indicate in the visa application form what medical treatment she required in Australia and stated ‘to be advised’.   

   Did the applicant hold a substantive temporary visa at time of application?

8. The delegate’s decision record, a copy of which was given to the Tribunal by the applicant, indicates that she last held a substantive visa on 24 February 2016.  At the time the current application was made, the applicant was in Australia and did not hold a visa, as her last visa, a subclass 457 visa, had been cancelled on 24 February 2016.  She claims that she was not aware of the cancellation at the time it occurred and has not taken any steps to challenge the cancellation.  She has not disputed that she last held a substantive visa on 24 February 2016.  Accordingly, on the evidence before it, the Tribunal finds that the applicant was in Australia at the time of application and did not hold a substantive temporary visa at that time, and that the last substantive visa she held was not a Subclass 403 or 426 visa. 

   Is the applicant medically unfit to depart Australia?

9. Clause 602.212(6) requires that 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; and

   (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.

10. As the applicant has not turned 50, the applicant does not meet the requirements of cl.602.212(6).

    Are the requirements of item 3001 of Schedule 3 met?

11. As the Tribunal has found that the applicant was in Australia at time of application, did not hold a substantive temporary visa at the time of application, and is not medically unfit to depart Australia, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in Annexure 1 (cl.602.213(3)).  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).  The information before the Tribunal indicates that the applicant’s last substantive visa was cancelled, but there is no information to indicate that that decision was set aside, and as she arrived lawfully in Australia on a substantive visa granted after 1 September 1994, in these circumstances, the ‘relevant day’ is the last day on which she held a substantive visa.

12. The present application was made on 13 May 2016, which was more than 70 days after her last substantive visa expired.  Accordingly, the Tribunal finds that the application was not lodged within 28 days of the relevant day and the applicant does not satisfy criterion 3001 or cl.602.213(5).  For these reasons, the applicant does not satisfy cl.602.213.

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

    DECISION

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

    Christian Carney
    Member

    
    

    APPENDIX 1 - RELEVANT LAW

    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.