1713558 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 602 Medical Treatment visa made by an applicant who was in Australia at the time of application but did not hold a substantive temporary visa. The applicant's last substantive visa had expired more than three months prior to the visa application. The Tribunal was required to determine whether the applicant met the requirements of clause 602.213 of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria under clause 602.213, specifically concerning the requirement to meet Schedule 3 criteria if not holding a relevant substantive temporary visa at the time of application. This included determining if the applicant met criterion 3001 of Schedule 3, which mandates that the visa application must be lodged within 28 days of the "relevant day." The Tribunal also considered whether the applicant met the requirements of clause 602.212(6), which pertains to being medically unfit to depart Australia.

The Tribunal reasoned that the applicant did not meet clause 602.213 because they failed to satisfy Schedule 3 criterion 3001. The "relevant day" for the applicant was the last day they held a substantive visa, which was an ETA that expired on 12 February 2017. As the Medical Treatment visa application was lodged more than three months after this date, it was not within the prescribed 28-day timeframe. Furthermore, the Tribunal found that the applicant did not meet the requirements of clause 602.212(6), as there was no evidence of a written statement from a Medical Officer of the Commonwealth confirming medical unfitness to depart, nor evidence of an application for a permanent visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Medical Treatment (Visitor) (Class UB) visa. While acknowledging the applicant's medical circumstances, the Tribunal determined that the case did not present unique or exceptional circumstances warranting a referral to the Minister under section 351 of the Migration Act 1958. The applicant was advised of their ability to request ministerial intervention directly.