BEENE (Migration)

[2018] AATA 4315

BEENE (Migration) [2018] AATA 4315 (25 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms CHIPO MWIINGA BEENE

CASE NUMBER:  1620864

DIBP REFERENCE(S):  BCC2016/4114021

MEMBER:Christine Kannis

DATE:25 September 2018

PLACE OF DECISION:  Perth     

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

Statement made on 25 September 2018 at 12:18pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – lodgement within time frame – time of last substantive visa – review application lodged out of time – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 602.212, 602.213, Schedule 3 Criteria 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 7 December 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 5 December 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).

3. The delegate refused to grant the visa because the applicant did not satisfy clause 602.213 of Schedule 2 as the applicant did not meet the requirements of Clause 3001 of Schedule 3 of the Regulations.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 application was lodged within the time frame required by the Regulations.

9. In her Application for a Medical Treatment visa (Form 48ME) the applicant indicated she required regular and frequent consultations with medical staff of the South Metropolitan Area Health Service of Western Australia (Mental Health) with the possibility of admission to hospital when indicated. The applicant provided a letter from Dr Jason Barratt-Hill, Senior Hospital Medical Officer dated 28 November 2016.

10. In his letter Dr Barratt-Hill said the applicant recently had her first child (two months prior) and said she became depressed following the birth. He said she spent several weeks in hospital and had recently been discharged. Dr Barratt-Hill said the applicant’s siblings reside in Australia and if she had to return to Zambia where she has no family support she may become mentally unwell again and if that occurred her baby may be at risk. Dr Barratt-Hill said the applicant was improving in her mental health but a forced return to Zambia would cause enormous stress and a likely deterioration in her mental health. He said she needed up to a year to recover from her illness.

11. Prior to the hearing the applicant’s representative provided the Tribunal with additional documentation which included but was not limited to a written submission, a letter dated 23 August 2018 from Dr Kevin Kendrick and information about the treatment of mental health in Zambia.

12. In his letter Dr Kendrick referred to the applicant having been under medical care for depression of fluctuating intensity since 2015. He said although she has responded well to medication there remains a chronic risk of relapse and associated risk. Dr Kendrick said the multidisciplinary support the applicant has received from her church, her family, the local community and medical input have helped stabilise her and mitigate risks. He said he understood a support network was not in place in Zambia and that could result in significant worsening of her mental health outcomes.

    The applicant’s visa status and related requirements

13. 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 (Subclause 602.213(4)) and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met (Subclause 602.231(5)). In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day, which is usually the day the applicant ceased to hold a substantive visa.

14. The Tribunal notes that, since the present application was made, amending legislation came into effect - Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017 - which repealed subclause 602.213(5)[1] and it has considered whether this subclause applies to the applicant in respect of his application.  However, Item 6503 of the amending legislation specifically states:

    The amendments of these Regulations made by Schedule 3 to the Migration Legislation Amendment (2017 Measures No. 3) Regulations 2017 apply in relation to an application for a Medical Treatment (Visitor) (Class UB) visa made on or after 1 July 2017.

    [1] >

    As the application in the present case was made on 5 December 2016, the Tribunal finds the amendments repealing subclause (5) do not apply to the application under review.

15. Subclause 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant meet all of the requirements at cl.602.212 (6) including that the applicant:

    ·is in Australia

    ·has turned 50

    ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

    ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

16. In the present case, the applicant does not meet  cl.602.212(6), was in Australia at the time of application, did not hold a substantive temporary visa at that time, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.

    Is criterion 3001 met?

17. 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.

18. Departmental records confirm that the applicant’s last substantive visa, a Subclass 573 visa, ceased on 15 March 2016. The application for the Medical Treatment (Visitor) (Class UB) visa was made on 5 December 2016. As this application was not made within 28 days of the relevant day (15 March 2016), the Tribunal finds that the applicant does not satisfy criterion 3001. As she does not satisfy criterion 3001, the Tribunal has not found it necessary to consider whether she satisfies the criteria in criterion 3003, 3004 and 3005.

19. For these reasons, the applicant does not satisfy cl.602.213.

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

    Request for recommendation for consideration of Ministerial Intervention

21. Prior to the hearing the applicant’s representative foreshadowed making a request for the Tribunal to refer this case to the Minister. At the conclusion of the hearing the applicant’s representative requested additional time to obtain instructions from the applicant regarding Ministerial intervention. On 30 August 2018 the applicant’s representative advised that the applicant was no longer seeking Ministerial intervention.

    DECISION

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

    Christine Kannis
    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.