1712020 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 602 Medical Treatment (Visitor) visa. The applicant, who entered Australia on a student visa in February 2013, had her student visa cancelled in October 2015 and subsequently overstayed until her husband's unsuccessful protection visa application. She applied for the medical treatment visa between June and December 2017, seeking treatment for mental health issues.

The primary legal issues before the Tribunal were whether the applicant met the Schedule 3 criteria applicable to her visa application, particularly in light of her unlawful status at the time of application. Specifically, the Tribunal had to determine if the applicant satisfied the requirements of clause 602.212, which outlines specific conditions for granting a medical treatment visa, and if not, whether she met the alternative requirements under clause 602.213, which necessitates meeting Schedule 3 criteria.

The Tribunal found that the applicant did not meet the requirements of clause 602.212(6), which relates to being medically unfit to depart Australia, as she had not turned 50 at the time of her application. Consequently, as she did not meet the criteria in clause 602.212(6) and was in Australia without a substantive visa at the time of her application, she was required to satisfy the Schedule 3 criteria, including criteria 3001, 3003, 3004, and 3005. The Tribunal's reasoning indicated that the applicant's circumstances, including her unlawful status and the timing of her application relative to her visa cancellation, meant she could not satisfy these Schedule 3 requirements.

Based on these findings, the Tribunal affirmed the decision not to grant the applicant a Subclass 602 Medical Treatment (Visitor) visa.