Singh (Migration)

[2017] AATA 1656

Singh (Migration) [2017] AATA 1656 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Parminder Singh

CASE NUMBER:  1709160

DIBP REFERENCE(S):  BCC2017/1266160

MEMBER:Melissa McAdam

DATE:18 September 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 18 September 2017 at 1:41pm

CATCHWORDS

Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – Not holding a substantive visa at time of application – Medically fit to depart Australia – Schedule 3 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

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 4 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 applicant applied for the visa on 3 April 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 meet the requirements of clause 602.213 of Schedule 2 of the Regulations.

4. On 10 August 2017 the Tribunal invited the applicant to a hearing scheduled for 18 September 2017, to give evidence and present arguments.

5. On 15 September 2017 the applicant informed the Tribunal that he had been in a car accident in August 2017 and that he would be not very well to attend the hearing. The Tribunal agreed with the Applicant to conduct the hearing by telephone.

6. The applicant appeared before the Tribunal by telephone on 18 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The following is a summary of the information given by the applicant and his wife, Mrs Shantinderjit Kaur, at the hearing:

   a.Mrs Kaur believed she had lodged another application for a Medical treatment visa  for her and her husband, within 28 days of last holding a substantive visa.

   b.They understood that the Tribunal was now reviewing their 3 April 2017 applications for a Medical Treatment visa.

   c.They understood that these applications were not within 28 days of last holding a substantive visa.

   d.The applicant needs to stay in Australia for medical treatment arising from his recent car accident.  

   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 meets the requirements of Criterion 3001 of Schedule 3 of the Regulations.

   The applicant’s visa status and related requirements

8. 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.

9. 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 which include 3001, extracted in the attachment to this decision.

   Is criterion 3001 met?

10. 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.

11. The applicant is a citizen of India. He was born on 1 November 1977.

12. The Tribunal accepts the evidence in the Department’s records that the applicant’s last substantive visa ceased on 15 March 2011, and that his present visa application was made on  3 April 2017.

13. The relevant day for the applicant is the last day when he held a substantive visa, namely 15 March 2011.

14. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore the applicant does not satisfy cl.602.213.

15. 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

16. 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.