YANG (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa, Subclass 602. The applicant sought to remain in Australia temporarily for medical treatment. The Tribunal was required to determine whether the applicant satisfied the requirements of clause 602.213 of the Migration Regulations.

The central legal issue was whether the applicant met the criteria under clause 602.213, which applies to applicants in Australia who do not hold a substantive visa. This clause requires, among other things, that the applicant's last substantive temporary visa was not a Subclass 426 or 403 visa, and that Schedule 3 criteria, specifically 3001, 3003, 3004, and 3005, are met. Criterion 3001 requires the visa application to be lodged within 28 days of the applicant ceasing to hold a substantive visa.

The Tribunal found that the applicant's last substantive visa, a FA-600 visa, ceased on 14 August 2009. The current application was lodged on 13 April 2017, significantly outside the 28-day timeframe stipulated by criterion 3001. While the applicant submitted personal circumstances, including a lack of knowledge about visa options and concerns about her children, the Tribunal noted it had no discretion regarding the mandatory requirements of clause 602.213. The applicant's submissions did not alter the fact that the Schedule 3 criteria, particularly the time limit for lodging the application, were not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Medical Treatment (Visitor) (Class UB) visa, as the applicant failed to satisfy the prescribed criteria for the visa.