WANG (Migration)

[2017] AATA 3106

WANG (Migration) [2017] AATA 3106 (14 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs SHENGKUN WANG

CASE NUMBER:  1712229

DIBP REFERENCE(S):  BCC2017/1829311

MEMBER:Jane Marquard

DATE:14 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 14 September 2017 at 10:58am

CATCHWORDS
Migration – Medical Treatment (Visitor) (Class UB) visa – Subclass 802 (Medical Treatment) – Last substantive visa – Lodged out of time – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 602.212, 602.213, Schedule 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 24 May 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 23 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 satisfy clause 602.213 of Schedule 2 as the applicant did not meet the requirements of criteria 3001 of Schedule 3 of the Regulations.

4. The applicant appeared before the Tribunal on 12 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant requested that she be heard with her husband, Mr Tang, who had a separate application, and this request was granted.

6. In her application, the applicant claimed that she was suffering from insomnia and would make arrangements for medical costs. She confirmed this at the Tribunal hearing.

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

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

   The applicant’s visa status and related requirements

10. 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.

11. At the Tribunal hearing the Tribunal discussed with the applicant the requirements of clause 602.213. The applicant confirmed that the last substantive visa ceased on 22 November 2010 and that the present application was made on 23 May 2017.

12. The applicant submitted that she applied for the visa because she had insomnia and depression. The Tribunal acknowledged her submissions but explained that it had no discretion in relation to the requirements of criterion 3001. The applicant stated that she had nothing further to submit.

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

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

14. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 24 May 2017. The Decision Record indicates that departmental records reveal that the last substantive temporary visa held by the applicant was a UC-457 visa, which ceased on 22 November 2010.

15. The Tribunal is satisfied that the applicant did not hold a substantive temporary visa at the time of application on 23 May 2017.

    Does the applicant meet Clause 602.212(6)?

16. In the present case, the Tribunal finds that the applicant does not meet cl.602.212(6), as she had not turned 50 as she was born in 1968.

17. 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?

18. 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.

19. As set out above, the last substantive visa held by the applicant ceased on 22 November 2010. Therefore the relevant day was 22 November 2010.

20. The application for the Medical Treatment (Visitor) (Class UB) visa was made on 23 May 2017. As this application was not made within 28 days of the relevant day (22 November 2010), the Tribunal finds that the applicant does not satisfy criterion 3001.

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

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

23. 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

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

    Jane Marquard
    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.