HATTAM (Migration)

[2017] AATA 2065

HATTAM (Migration) [2017] AATA 2065 (23 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JOHN WILLIAM HATTAM

CASE NUMBER:  1709361

DIBP REFERENCE(S):  BCC2017/1331867

MEMBER:Linda Symons

DATE:23 October 2017

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 23 October 2017 at 2:53pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) – Subclass 602 (Medical Treatment) – Application lodged out of time – Ministerial intervention referral

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cl 602.212, 602.213

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 12 April 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 7 April 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 she was not satisfied that the applicant met the requirements of cl.602.213. The applicant applied to the Tribunal on 28 April 2017 for review of that decision.

4. The applicant appeared before the Tribunal on 23 October 2017 to give evidence and present arguments. The Tribunal also heard evidence from his daughter, Julie Flanagan, and his son in law, Gregory Flanagan.

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 AND FINDINGS

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 the applicant satisfies the requirements of cl.602.213.

   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 is in Australia, has turned 50 years and has applied for a permanent visa (subclass 804 (Aged Parent Residence) visa) while in Australia. However, he was found not to meet the criteria for the grant of that visa other than on public interest criteria related to health and has been refused the visa. There is no evidence before the Tribunal from a Medical Officer of the Commonwealth to the effect that he is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition. Accordingly, the Tribunal finds that he does not satisfy the requirements of cl.602.212(6).

10. As 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?

11. 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.

12. Submissions made to the Tribunal on behalf of the applicant indicate that the last substantive visa the applicant held was a Visitor visa. This visa expired on 1 June 2013. Accordingly, the Tribunal finds that the relevant day is 1 June 2013.

13. The Tribunal finds that a valid application for a Medical Treatment visa was made on 7 April 2017. As the visa application was not made within 28 days of the relevant day (1 June 2013), the Tribunal finds that the applicant does not satisfy criterion 3001. As he does not satisfy criterion 3001, he is unable to satisfy cl.602.213. Therefore, the Tribunal does not consider it necessary to consider whether he satisfies the criteria in 3003, 3004 and 3005.

14. For the reasons given above, the Tribunal finds that the applicant does not satisfy cl.602.213.

15. 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.

    Ministerial intervention

16. The applicant gave evidence of the impact on him if he is required to return to the UK. He requested that the Tribunal refer his application to the Minister of Immigration and Border Protection (the Minister) for Ministerial intervention pursuant to s.351 of the Act. The Tribunal has been provided with a large bundle of supporting documents including documents in relation to the applicant’s health, his financial independence and the inability of his two sons to care for him if he is required to leave Australia.

17. The Tribunal has also been provided with letters of support from the applicant’s daughter, son in law, grandchildren, friends and Ms Julie Flanagan’s employer. His daughter, Julie Flanagan, and his son in law, Gregory Flanagan, also gave evidence at the hearing of the impact on him if he is required to return to the UK and the impact on them, their children, extended family, friends and the community if he is required to leave Australia. The Tribunal has been provided with written submissions from the applicant’s migration agent.

18. The Tribunal has considered all of the above and the Ministerial Guidelines relating to the Minister's discretionary power under section 351 of the Act as set out in Ministerial Intervention under Sections 351, 417 and 501J of the Migration Act. The Tribunal is of the view that there are unique or exceptional circumstances in this case and that it should be referred to the Department to be brought to the Minister’s attention for the following reasons:

    ·There are strong compassionate circumstances regarding the age and health and psychological state of the applicant that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to him. He is an 85 year old widower with significant health problems. He is unable to care for himself without assistance or to live independently.

    ·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. The applicant’s daughter, son in law and their four children are all Australian citizens and they have close relationships with the applicant. His departure from Australia would have a significant impact on them.

    DECISION

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

    Linda Symons
    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.