1707990 (Migration)

This matter concerned an application for a Medical Treatment (Visitor) (Class UB) visa (Subclass 602) by Ms A, who sought to remain in Australia to provide care and emotional support to her Australian citizen son, Child 1. Child 1 suffers from a rare medical condition requiring ongoing treatment and consultation in Australia. Ms A contended that she could not leave her son to apply for an offshore visa due to his complex medical needs and the instability and inadequate medical facilities in their home country, the Democratic Republic of Congo.

The Tribunal was required to determine whether Ms A met any of the seven alternative sub-criteria outlined in clause 602.212 of the Migration Regulations 1994. Specifically, the Tribunal considered whether Ms A satisfied sub-clauses 602.212(2), (4), or (8). The primary issue was whether Ms A's role as a support person for her Australian citizen son qualified her for the visa, given that Child 1 did not hold one of the specified visas required under sub-clause 602.212(4)(b).

The Tribunal found that Ms A did not meet the requirements of sub-clause 602.212(2) as no arrangements had been concluded for her own medical treatment. Furthermore, while Ms A sought to provide support to Child 1, who was receiving medical treatment, Child 1, being an Australian citizen, did not hold a visa specified in sub-clause 602.212(4)(b). Consequently, Ms A could not satisfy sub-clauses 602.212(4) or 602.212(8). Despite these findings, the Tribunal considered that the application of clause 602.212 led to unfair or unreasonable results in this case, particularly given the serious potential problems for Ms A and Child 1 if they were to return to the Democratic Republic of Congo. The Tribunal noted the volatile security situation, inadequate medical facilities, and the best interests of the child under the Convention on the Rights of the Child.

The Tribunal affirmed the decision not to grant Ms A the visa. However, it determined that the case warranted a referral to the Minister for consideration under section 351 of the Migration Act 1958, due to strong compassionate circumstances and circumstances not anticipated by the legislation, which could lead to unfair or unreasonable results.