PHUNG (Migration)

PHUNG (Migration) [2018] AATA 1124 (23 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs THI CHI PHUNG
CASE NUMBER:  1713174
DIBP REFERENCE(S):  BCC2017/1942967
MEMBER:Tania Flood
DATE:23 March 2018
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 March 2018 at 3:21pm

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Last substantive visa – Lodged out of time – Ministerial intervention requested
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 602.212, 602.213, Schedule 3 criterion 3001

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 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 applied for the visa on 31 May 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 apply for the visa within the relevant timeframe.
The applicant was invited to attend a hearing of the Tribunal on 23 March 2018 at 9.00am (NSW time). The applicant’s representative contacted the Tribunal on 21 March 2018 to advise that the applicant understands she does not meet the criteria for the visa and so would not be attending the hearing. The applicant’s representative advised that the applicant would accept a decision on the papers. In the circumstances, the Tribunal has proceeded to make a decision without taking further steps to interview the applicant.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 application was lodged within the time frame required by the Regulations.
Is the applicant unfit to depart Australia?
8. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl.602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl.602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant meet all of the requirements at cl. 602.212 (6) including that the applicant:
·is in Australia
·has turned 50
·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and
·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The Tribunal is satisfied that the applicant is in Australia but has not yet turned 50. In view of this, the requirements in cl.602.212(6) are not met.
The applicant’s visa status and related requirements
Clause 602.213 applies to applicants who are not medically unfit to depart Australia as required by cl.602.212(6), and who were in Australia at the time the visa application was made. It requires that the applicant at that time either held a substantive temporary visa (except certain kinds), or if not, that the last substantive temporary visa they held was not a Subclass 403 visa in the Domestic Worker (Diplomatic or Consular) stream (or a Subclass 426 visa, for applications made before 19 November 2016), and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.
In the present case, the applicant does not meet cl.602.212(6), was in Australia at the time of application, did not hold a substantive temporary visa at that time, 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?
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.
Departmental records show that the last substantive visa the applicant held was a UF-309 visa which ceased on 17 January 2014. The records also show that the application for the visa was made on 31 May 2017.
The Tribunal finds that the relevant day in the applicant’s circumstances is 17 January 2014, that being the last day when she held a substantive visa.
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.
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.
REQUEST FOR RECOMMENDATION FOR CONSIDERATION OF MINISTERIAL INTERVENTION
On 21 March 2013 the applicant’s representative made a request for the Tribunal to refer this case to the Minister for consideration. It was submitted that the applicant has considerable and compelling reasons to remain in Australia. Specifically, it is submitted that the applicant’s husband and two young children, are Australian citizens and if she is required to depart Australia her family will suffer severe consequences. It is submitted that the interests of the applicant’s children must be considered.
The Tribunal notes that the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances, which are said to include:
- 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 Minister’s Guidelines also provide guidance on the types of cases which do not meet the guidelines for referral. This includes situations where a person may be able to apply for a Partner visa onshore.
The applicant’s submission is that she has two children with her current husband. The Tribunal considers it is open to the applicant to apply for a Partner visa with her current husband.
In view of the above the Tribunal does not consider that the circumstances warrant that this matter be referred to the Minister for consideration.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Tania Flood
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).
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.

[2018] AATA 1124

23 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal