SINGH (Migration)

[2018] AATA 4111

SINGH (Migration) [2018] AATA 4111 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmeet Singh

CASE NUMBER:  1622301

DIBP REFERENCE(S):  BCC2016/4187714

MEMBER:John Billings

DATE:28 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 August 2018 at 3:32pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – not holding a substantive visa at application – medically fit to depart Australia – Schedule 3 criterion 3001 – application out of time – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 362

Migration Regulations 1994, Schedule 2 cl 602.213; Schedule 3 Criteria 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 13 December 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, Mr Singh, applied for the visa on 9 December 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 delegate refused to grant the visa because Mr Singh did not meet criterion 3001 in Schedule 3 to the Regulations and so did not satisfy cl.602.213.  This was because he applied for the visa more than 28 days after the last day he held a substantive visa.  Mr Singh applied for review on 23 December 2016.  He provided a copy of the primary decision to the Tribunal. 

4. There was no hearing.  On 7 August 2018 the Tribunal sent Mr Singh an invitation to appear before the Tribunal at 11.30 am on 24 August 2018.  The invitation was sent by email.  The Tribunal’s case management system records that on 17 August and 23 August the Tribunal sent SMS hearing reminders to the mobile phone number provided by Mr Singh.  Mr Singh did not attend the Tribunal at the scheduled hearing time.  The Tribunal has received no explanation for that.  In the circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking further action to enable Mr Singh to appear before it. 

5. Mr Singh is a 29 year old national of India.  He first arrived in Australia on 21 April 2008 holding a Class TU Student visa.  Since then he has been granted further Student visas the last of which ceased on 2 October 2011.  Before the last Student visa ceased he was granted a Bridging A visa.  Since that time Mr Singh has been granted other bridging visas.  He currently holds a Bridging C visa.  Mr Singh has departed and re-entered Australia on a number of occasions since he first arrived.

6. In making the application Mr Singh claimed that he was medically unfit to travel.  He said that due to “LS strain” (Lumbar strain) he was unable to travel and move out of bed.  The visa application was accompanied by GP’s letter dated 5 December 2016 that simply states: “In my opinion [Mr Singh] is suffering from LS strain (sic) due to heavy lifting and is under treatment”.  No further medical has been submitted to the Department or to the Tribunal. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 Mr Singh meets the requirements of cl.602.213.  

9. 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 relevant substantive temporary visa, 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.

10. The medical evidence submitted to the Department does not indicate that Mr Singh was medically unfit to depart Australia at the time he made the visa application.  Whatever the case, there is no medical evidence to indicate that Mr Singh is not now medically unfit to depart Australia. 

11. In the present case, Mr Singh does not meet  cl.602.212(6), he was in Australia at the time of application, he 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, Mr Singh must meet the Schedule 3 criteria including 3001.  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.  In this case the relevant day is the last day when Mr Singh held a substantive visa. 

12. Mr Singh’s last substantive visa was his last Student visa.  That visa ceased on 2 October 2011.  That was over four years before he applied for the Medical Treatment visa. As the visa application was not made within 28 days of the relevant day, Mr Singh does not satisfy criterion 3001. For these reasons, Mr Singh does not meet the requirements of cl.602.213.

13. Based on the findings above, Mr Singh does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    DECISION

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

    John Billings
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    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.