LU (Migration)

[2017] AATA 3157

LU (Migration) [2017] AATA 3157 (19 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YANG LU

CASE NUMBER:  1714778

DIBP REFERENCE(S):  BCC2017/2170762

MEMBER:Jane Marquard

DATE:19 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 19 October 2017 at 11:39am

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Application not lodged within 28 days of the relevant day – Whether the applicant is unfit to depart Australia – Applicant assessed as not unfit to depart by Medical Officer of the Commonwealth – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 602.213, 602.216, Schedule 3, 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 19 June 2017 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act). The applicant is from China.

2. The applicant applied for the visa on 19 June 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. In his application the applicant stated that he is scared of going to China and needs to see a psychologist. He confirmed this at the Tribunal hearing.

4. 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.

5. The applicant appeared before the Tribunal on 19 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal outlined the key criteria of the visa to the applicant.

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 the applicant satisfies the requirements of cl.602.213 of the Regulations.

8. In coming to a decision, the Tribunal has taken into account information on the Department file, and before this Tribunal.

   The applicant’s visa status and related requirements

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. 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.

10. At the Tribunal hearing the Tribunal discussed with the applicant the requirements of clause 602.213. The applicant confirmed that his last substantive visa ceased on 9 July 1997 (a TR-676 visa), and that the present application was made on 19 June 2017, which is more than 28 days after the expiry of the substantive visa. The applicant was provided with an opportunity to comment on this. He said that mentally he is “a mess” and needs to see a psychologist. He feels extremely stressed. Asked about not applying within 28 days of the expiry of his last substantive visa, he said that mentally he was a mess back then, and sometimes was not very conscious, and had a great fear, and missed the application date. He then asked a friend to help him with the visa application.

    Was the applicant in Australia at the time of application and did the applicant hold a substantive temporary visa at time of application?

11. There is no issue that the applicant was in Australia at the time of application, and the Tribunal and the Tribunal finds accordingly.

12. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 20 June 2017. The Decision Record indicates that departmental records reveal that the last substantive temporary visa held by the applicant was a TR 676 visa, which ceased on 9 July 1997.

13. The Tribunal is satisfied that the applicant did not hold a substantive temporary visa at the time of application on 19 June 2017.

    Does the applicant meet Clause 602.212(6)?

14. It was put to him that there was no statement from a Medical Officer of the Commonwealth pursuant to 602.216. He said that the Department has not given him a chance and he just has to bear the pain. In the present case, the Tribunal finds that the applicant does not meet cl.602.212(6), as there is no evidence before it to indicate that he 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.

15. As the applicant did not hold a substantive temporary visa at the time of application, did not meet cl.602.212(6) and the last such visa held was not a Subclass 403 or 426 visa, 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?

16. The applicant was asked if there was anything further he wished to submit. He said that in his case he has been in Australia for more than 20 years, and his condition has been deteriorating, and his mental state is a mess. There is no future if he goes back to China.

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. As set out above, the last substantive visa held by the applicant ceased on 9 July 1997. Therefore the relevant day was 9 July 1997.

19. The application for the Medical Treatment (Visitor) (Class UB) visa was made on 19 June 2017. As this application was not made within 28 days of the relevant day (9 July 1997), the Tribunal finds that the applicant does not satisfy criterion 3001.

20. As the applicant does not satisfy criterion 3001, the Tribunal has not found it necessary to consider whether he satisfies the criteria in criterion 3003, 3004 and 3005.

21. As the applicant does not satisfy criterion 3001, he is unable to satisfy cl 602.213. The Tribunal finds that he does not satisfy cl.602.213.

22. Based on these findings, the applicant does not meet the criteria for the grant of the visa. Therefore the decision under review must be affirmed.

    DECISION

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

    Jane Marquard
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 2

    602.212 (1)     The requirements in one of subclauses (2) to (8) are met.

    Medical treatment

    (2)All of the following requirements are met:

    (a)     the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;

    (b)    arrangements have been concluded to carry out the treatment;

    (c)     if the treatment is an organ transplant:

    (i)the donor of the relevant organ is accompanying the applicant to Australia; or

    (ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;

    (d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

    (e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

    (f)     either:

    (i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

    (ii)evidence is produced that the relevant government authority has approved the payment of those costs.

    Organ donor

    (3)All of the following requirements are met:

    (a)     the applicant seeks to donate an organ for transplant in Australia;

    (b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;

    (c)     the applicant satisfies public interest criterion 4005;

    (d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

    (e)     either:

    (i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

    (ii)evidence is produced that the relevant government authority has approved the payment of those costs.

    Support person

    (4)All of the following requirements are met:

    (a)     the applicant seeks to give emotional and other support to an applicant in relation to whom:

    (i)the requirements described in subclause (2) or (3) are met; or

    (ii)the requirements described in subclause 675.212(2) or (3) are met; or

    (iii)the requirements described in subclause 685.212(2) or (3) are met;

    (b)    the person to whom the applicant is to provide support holds:

    (i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or

    (ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or

    (iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;

    (c)     the applicant satisfies public interest criterion 4005.

    Western Province of Papua New Guinea

    (5)All of the following requirements are met:

    (a)     the applicant is a citizen of Papua New Guinea;

    (b)    the applicant resides in the Western Province of Papua New Guinea;

    (c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.

    Unfit to depart

    (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.

    Financial hardship

    (7)All of the following requirements are met:

    (a)     one of the following applies:

    (i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;

    (ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;

    (iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;

    (iv)the requirements described in subclause (5) are met in relation to the applicant;

    (v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;

    (b)    the applicant is in Australia;

    (c)     the applicant holds:

    (i)a Subclass 602 visa; or

    (ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or

    (iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;

    (d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;

    (e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;

    (f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;

    (g)    the applicant has compelling personal reasons to work in Australia;

    (h)    the applicant satisfies public interest criterion 4005.

    Compelling personal reasons

    (8)All of the following requirements are met:

    (a)     one of the following applies:

    (i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;

    (ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;

    (iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;

    (iv)the requirements described in subclause (5) are met in relation to the applicant;

    (v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;

    (b)    the applicant is in Australia;

    (c)     the applicant has compelling personal reasons for the grant of the visa;

    (d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).