Li (Migration)

[2017] AATA 3176

Li (Migration) [2017] AATA 3176 (23 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Qinghua Li

CASE NUMBER:  1617907

DIBP REFERENCE(S):  BCC2016/3300653

MEMBER:Melissa McAdam

DATE:23 February 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 February 2017 at 9:38am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Cass UB) – Subclass 602 (Medical Treatment) – last substantive visa in 2008 – application 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 Criterion 3001 - 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 10 October 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 4 October 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 applicant provided the following information in her visa application:

   a.The applicant is a 28 year old married woman from China.

   b.She is living in Australia. She wishes to remain in Australia from 28 September 2016 to 28 September 2017.

   c.She is applying for the visa as a person who will undergo medical treatment.

   d.She is under medical assessment

   e.She enclosed a copy of a tax invoice from a medical centre for level B surgery.

4. According to the Department’s records, the applicant last held a substantive visa (a subclass 571 visa)  on 15 March 2008.

5. The delegate refused to grant the applicant the visa because the applicant did not meet clause 602.213 of Schedule 2 and the additional Public Interest Criterion 3001 in Schedule 3 to the Migration Regulations which require the application to be validly made within 28 days after the day when the last substantive visa ceased to be in effect.

6. On 17 January 2017 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 22 February 2017. The review applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice.  An SMS hearing reminder with the day and time of the scheduled hearing was also sent to the review applicant 5 business days prior to the scheduled hearing date and a second reminder was sent one business day prior. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), and that two separate SMS reminders were also sent advising the review applicant of the hearing details. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   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 or not the applicant satisfies the criteria in Clause 602.213.

   The applicant’s visa status and related requirements

8. The applicant did not attend a hearing where the Tribunal would have discussed the requirements of clause 602.213.

9. 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.

10. The applicant was born on 10 March 1988 and is thus under the age of 50 years and so cannot meet the criteria in Clause 602.212(6).

11. 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.

12. On the evidence before it, the Tribunal accepts the following details recorded in the delegate’s decision record, namely that the applicant’s last substantive visa ceased on 15 March 2008, and that her present visa application was made on 4 October 2016.

    Is criterion 3001 met?

13. 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.

14. The relevant day for the applicant is the last day when she held a substantive visa, namely 15 March 2008.

15. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

16. For these reasons the applicant does not satisfy cl.602.213.

17. 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

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

    Melissa McAdam
    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.