1712844 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 602 Medical Treatment (Visitor) visa. The review applicant sought to remain in Australia for medical treatment. The primary issue was whether the applicant met the criteria for the visa, particularly in light of her visa status at the time of application and the applicability of Schedule 3 criteria.

The Tribunal was required to determine if the applicant was medically unfit to depart Australia under clause 602.212(6) of the Migration Regulations 1994. Additionally, the Tribunal had to assess whether the applicant met the requirements of clause 602.213, which pertains to applicants who were in Australia at the time of their visa application and were not holders of a substantive temporary visa. The Tribunal also considered the applicability of Schedule 3 criteria, specifically clauses 3001, 3003, 3004, and 3005, given the applicant's visa status.

The Tribunal found that while the applicant had provided medical evidence of ongoing treatment for breast cancer and other health issues, this evidence did not satisfy the specific requirements of clause 602.212(6), which necessitates a statement from a Medical Officer of the Commonwealth confirming unfitness to depart due to a permanent or deteriorating condition. Furthermore, the Tribunal was satisfied that the applicant was not the holder of a substantive temporary visa when she applied, meaning she did not meet the requirements of clause 602.213(1) and (2). Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of the visa. Despite this, the Tribunal considered the applicant's age and health circumstances to be compassionate and recommended that the Minister consider exercising discretion under section 351 of the Migration Act 1958. The Tribunal affirmed the decision not to grant the visa.