Australian Immigration Daily News

Suppose you are contacted by a potential client who seeks your help. 

The client has become an unlawful non-citizen due to the fact that his substantive visa has ceased, and he holds no bridging visa. 

Would a Medical Treatment (Visitor) visa be a possible option for enabling the client to restore lawful status? 

What obstacles might stand in the way of the client getting the visa? 

These questions were dealt with by the Federal Circuit Court in two cases that were decided last week, Saifuddin v Minister for Immigration & Anor (2016) FCCA 1497 (20 June 2016) and La v Minister for Immigration & Anor (2016) FCCA 1499 (23 June 2016). 

The factual backgrounds in these cases were similar, in that the substantive visa held by each applicant had ceased long before each of them sought the Medical Treatment visa. 

In Saiffudin, the applicant had originally entered Australia from India in 2011 as the holder of a tourist visa. While that visa was still in effect, he sought a protection visa. However, that application was refused. Then, in May 2015, he lodged his application for a Medical Treatment visa. 

The circumstances in La were that the applicant held a subclass 820 partner visa that ceased in February 2012. More than two years after that visa had expired, he applied for the Medical Treatment visa. 

Both applicants ran into the same roadblock. 

Clause 602.213 of Part 2 of Schedule 2 provides that if the applicant is in Australia at the time of the application, and does not hold a substantive visa, the applicant must meet one of two alternative sets of criteria. 

The first of these pathways is available under subclause 602.212(6), and addresses the situation if an applicant is medically unfit to depart from Australia. In order to meet the criteria of 602.216(6), the applicant must be at least 50 years old, have applied for a permanent visa, appear to meet all the criteria for the grant of the visa other than the health criteria, have been refused the permanent visa, and be medically unfit to depart from Australia due to a permanent disease or health condition evidenced by a written statement by the Medical Officer of the Commonwealth. 

The second pathway is to satisfy subclause 602.212(6), namely, to satisfy Schedule 3 criteria. 

Unfortunately, the applicants in Saiffudin and in La were both unable to meet Schedule 3.  Neither one of them had lodged his application the effective “relevant day” for determining the deadline by which an application for a new visa needed to be lodged was within 28 days after the last substantive visa was in effect. 

And as discussed above, each of these applicants waited until years had passed since their last substantive visas had expired. So they really had no prayer of being able to satisfy Schedule 3. 

What about getting a waiver of Schedule 3? 

Not an option! Subclause 602.212(5) does not contain any provision which would allow Schedule 3 not to be applied.So in this respect, the criteria for Medical Treatment visas are dramatically different than they are for onshore partner visas sought under Part 820. As RMAs will be aware, under subclause 820.211(2)(d)(ii), it is possible to seek a “waiver” of Schedule 3 criteria if it can be shown that compelling reasons exist for not applying Schedule 2.  And under the important decision of the Full Court that was handed down in March of this year, Waensila, the circumstances that are relied on for seeking a Schedule 3 waiver are not limited to those in existence at the time the application was made. There is no “temporal” (time) restriction, so circumstances that arise at any time before the decision whether to “waive” Schedule 3 is made can be relied upon. 

Since no waiver power exists for Medical Treatment visas, the Tribunal had not discretion at all not to apply Schedule 3, even if the Tribunal had wished to do so.  

Accordingly, the claim that was advanced by the applicant in Saiffudin  that “Schedule 3 should be waived and should not apply to people who have serious medical conditions”  and the claim in La that the Tribunal “did not consider that I had compelling reasons for not holding a substantive visa” were both totally ineffective. 

An interesting aspect of the La case is that the applicant apparently did not seek to avail himself of the family violence provisions of Part 801, and seek a permanent residence partner visa on that basis. The applicant relied in seeking the Medical Treatment visa on a letter from his GP which stated that he was suffering from “major reactive depression from alleged maltreatment by his wife and her family”.  There was also evidence before the Tribunal that the applicant had been assaulted by his father in law while attending a family occasion. 

However, there is no mention in the Court's judgment that family violence had been perpetrated against the applicant by his sponsoring partner. So apparently that is the reason that the subclass 801 visas was not pursued. 

Both the Saiffudin and La cases illustrate that a Medical Treatment visa is of limited use in regularising the status of an unlawful non-citizen unless Schedule 3 criteria can be met.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.