Iftikhar (Migration)

[2017] AATA 1644

Iftikhar (Migration) [2017] AATA 1644 (31 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sheikh Amir Iftikhar

CASE NUMBER:  1709151

DIBP REFERENCE(S):  BCC2017/1229699

MEMBER:Christine Cody

DATE:31 August 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 31 August 2017 at 3:59pm

CATCHWORDS

Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Applicant held a substantive temporary visa at time of application – Application validly made within 28 days after the relevant day – Schedule 3 Additional criterion 3001 – Application out of time

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 602.212, cl 602.213, Schedule 3, Additional criterion 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 5 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 visa applicant is a national of Pakistan. He applied for the visa on 30 March 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 applicant claimed in his application form that he considers that he has some health issues; he is under the treatment of his GP, and is awaiting a specialist appointment. He provided some pages from his passport to the Department.

4. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met cl.602.213 of Schedule 2 to the Regulations. The delegate found the applicant made his application for this Subclass 602 visa on 30 March 2017, more than three years after he last held a substantive temporary visa on 14 November 2013[1]. 

   [1] As set out in the delegate’s decision record provided to the Tribunal by the applicant.

5. The delegate thus found that the applicant did not hold a substantive temporary visa at the time of application for the Subclass 602 visa, and thus did not meet cl.602.213(1) and (2).

6. Further, the delegate found the application for the Subclass 602 visa was not made within 28 days of the applicant ceasing to hold a substantive visa. As a result of this finding, the delegate found that the applicant did not satisfy Schedule 3 criterion 3001 of the Regulations. The delegate considered that the applicant failed to satisfy cl.602.213(3), (4) and (5) which requires, amongst other things, that Schedule 3 criterion 3001 must be met.

7. The applicant appeared before the Tribunal on 31 August 2017 to give evidence and present arguments with the assistance of an interpreter in the Urdu and English languages. The day prior to the hearing the applicant had requested a hearing postponement on the grounds that he had a toothache, for which he had been taking medicine, but it was not getting better. He did not provide any medical evidence in support. The Tribunal noted that he had already requested a telephone hearing, and in the circumstances, the Tribunal considered that he could give evidence at that telephone hearing, and declined to postpone the hearing. When the Tribunal telephoned the applicant on the day of the hearing in order to conduct a telephone hearing, he said that he had taken a Panadol and his tooth was better and he could give evidence. The Tribunal was satisfied that the applicant was able to give evidence and present arguments at the hearing.

8. Prior to the hearing, the applicant had requested that the Tribunal take evidence from his friend. At the hearing, the Tribunal discussed the relevant criteria with the applicant, and asked the applicant whether he thought his friend was able to give evidence relevant to the criteria. The applicant said no, and he said he did not wish his friend to give evidence.

9. The applicant conceded at hearing that he did not meet the requirements when they were discussed with him.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 Clause 602.213.

    The applicant’s visa status and related requirements

12. 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.

13. The Tribunal discussed the requirements of clause 602.213 (extracted in the attachment to this decision) with the applicant at hearing. The Tribunal notes that clause 602.213 is set out in the delegate’s decision record which the applicant provided to the Tribunal. The applicant did not provide with his application for review or thereafter any written response to the delegate’s decision record. The applicant agreed with the following details recorded in the delegate’s decision record: that his last substantive visa (subclass FA-600) ceased on 14 November 2013, and that his present visa application was made on 30 March 2017. He told the Tribunal that at the time he lodged his medical treatment visa application, he held a bridging visa (while he had had an outstanding Ministerial Intervention application), which the Tribunal noted was not a substantive visa. The Tribunal finds that the applicant’s last substantive visa held (subclass FA-600) ceased on 14 November 2013, and that his present visa application was made on 30 March 2017.

14. The applicant gave evidence that he was in Australia at the time of the application, that he had not held either a subclass 426 or subclass 403 substantive temporary visa, and that he is under the age of 50 years[2] (one of the requirements of clause 602.212(6), noting that all the requirements of clause 602.212(6) must be met, which is a requirement of clause 602.213(3)).The applicant did not suggest that he met any of these visa requirements.

    [2] He was born in 1975 according to his application form.

15. Thus, 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. The applicant thus does not meet clause 602.213(1) - (4). In these circumstances, the applicant must comply with clause 602.213(5) by meeting the Schedule 3 criteria 3001, 3003, 3004 and 3005 (extracted in the attachment to this decision).

    Is criterion 3001 met?

16. 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.

17. The Tribunal has found that the applicant ceased holding a temporary substantive visa on 14 November 2013. The ‘relevant day’ is therefore 14 November 2013. The present visa application was made, as noted above, on 30 March 2017. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001 (and thus does not meet cl.602.213(5)).

18. The Tribunal has considered the applicant’s evidence at hearing that he has had difficult times including separating from his wife, false charges were laid against him, people want to kill him back in Pakistan, he has previously applied for Ministerial Intervention, and that he receives assistance from his friends. The Tribunal confirmed that it did not have any discretion in relation to the requirements of cl.602.213, and the applicant said that he understood.

19. For the reasons set out above, the applicant does not satisfy cl.602.213.

20. 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.

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

    Christine Cody
    Member

    
    

    ATTACHMENT

    Regulation 602.213

    (1)      Subclause (2) applies if:

    (a)      the applicant was in Australia at the time of application; and
    (b)      the applicant held a substantive temporary visa at that time; and
    (c)      the requirements described in subclause 602.212(6) are not met in relation to the applicant.

    (2)      The substantive temporary visa held by the applicant was not:

    (a)      a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
    (b)      a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

    (3)      Subclauses (4) and (5) apply if:

    (a)      the applicant was in Australia at the time of application; and
    (b)      the applicant did not hold a substantive temporary visa at that time; and
    (c)      the requirements described in subclause 602.212(6) are not met in relation to the applicant.

    (4)      The last substantive temporary visa held by the applicant was not:

    (a)      a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
    (b)      a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

    (5)      The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

Regulation 602.212(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.

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.