Botros (Migration)

[2017] AATA 1477

Botros (Migration) [2017] AATA 1477 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akram Botros

CASE NUMBER:  1702681

DIBP REFERENCE(S):  BCC2017/618512

MEMBER:Rosa Gagliardi

DATE:28 August 2017

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 28 August 2017 at 3:20pm

CATCHWORDS

Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – No substantive visa at application – Application not made within 28 days of relevant day – Previous partner visa refusal – Separation from young family – Compassionate and humanitarian considerations – Request for Ministerial Intervention

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulation 1994, Schedule 2, cl 602.213, Schedule 3, Criteria 3001, 3003, 3004, 3005

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 February 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 14 February 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).

3. The delegate refused to grant the applicant the visa because the applicant did not hold a substantive visa at the time of application and does not meet subclauses 602.213(1) and 602.213(2).

4. The applicant appeared before the Tribunal on 12 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his spouse, Ms Lina Azo. The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 cl.602.213 is met by the applicant.

   The applicant’s visa status and related requirements

8. 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.

9. In the present case, the applicant does not meet cl.602.212(6), did not hold a substantive temporary visa at the time of application, 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?

10. 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.

11. As explained to the applicant at hearing, departmental records confirm that his last substantive visa (UD-601) ceased on 8 January 2015.  The Medical Treatment visa application was received on 14 February 2017, more than 28 days after the last substantive visa had ceased.

12. 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 satisfy cl.602.213.

    Request for Ministerial Intervention

13. The applicant is seeking Ministerial Intervention under s.351 of the Act. It appears that this application for review was lodged primarily for the applicant to be able to access the Minister’s intervention powers. He is not arguing that he requires a medical treatment visa per se.

14. It was explained at hearing that due to an unfortunate sequence of events the family now faces separation.  The applicant is married to an Australian citizen and they have two infant children together.  The applicant was born in Iraq but is a citizen of Germany.  The applicant applied for a Partner visa onshore and the department requested that he provide additional information to complete his application.  The applicant requested a cousin to translate the communication but for some reason the applicant’s cousin told him not to worry about responding; it was not important.  The department refused the Partner visa. 

15. Through further misfortune the applicant missed out on filing a review of the refusal with the Tribunal within the prescribed period by one day.  At the time the applicant’s spouse was due to give birth to their second child but was suffering from a number of medical conditions and needed the applicant to look after her.  Their eldest daughter who was under the age of two also required care and given the extreme pressure they were under, had genuine medical grounds for the delay in lodging their review application.  Consequently, the Tribunal had no discretion to hear the case, the applicant was denied an ability to lodge a Partner visa onshore and as the Tribunal had no jurisdiction to hear the case, the applicant was not able to access the Minister’s Intervention powers;  hence this subclass 602 visa application.

16. At hearing the applicant stated that he could not return to Germany, a country of which he holds citizenship because his wife will not be able to manage with two infant children on her own.   The applicant’s spouse is no longer working as she cares for her children.  They are under enormous financial strain as they owe relatives a significant amount of money.  To be required to lodge a Partner visa offshore will mean the applicant will have to find additional funds to lodge the Partner visa application and he will be deprived of being able to assist his spouse rear their young children.  It would also cause significant emotional and psychological repercussions as they consider that the cohesive family unit would be torn apart.  The children would suffer the loss of their father at a critical stage in their lives and his spouse would be forced to survive on social welfare as she cannot raise the children and attend work without help.

17. The Tribunal has no doubts that the relationship is a genuine and continuing one and as far as the Tribunal can see the applicant does not appear to have breached any of his visa conditions.  The Tribunal considers that this is a case which may give rise to compassionate and humanitarian considerations as the welfare of two young Australian citizen children is involved, including that of the the applicant’s spouse. 

18. The Tribunal understands that the applicant intends to raise these considerations directly with the Minister.

    CONCLUSION

19. Based on the findings in respect of the Regulations the applicant does not meet the requirements for the grant of this visa.

    DECISION

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

    Rosa Gagliardi
    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.