1802485 (Migration)

The applicant, an Italian citizen, sought review of a decision not to grant her a Subclass 602 Medical Treatment (Visitor) visa. The applicant acknowledged she did not meet the visa criteria and applied for the visa to pursue a request for ministerial intervention. Her immediate family, including her mother, father, and two sisters, are all Australian citizens and residents.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 602.212 of the Migration Regulations 1994, which outlines the criteria for a Medical Treatment (Visitor) visa. Specifically, the Tribunal had to determine if the applicant satisfied any of the seven alternative sub-criteria within clause 602.212(2) to (8), which relate to the basis for seeking a stay in Australia for medical treatment or related purposes.

The Tribunal found that the applicant did not meet the requirements of clause 602.212(2) as she had not provided evidence of making arrangements for medical treatment in Australia. Furthermore, the applicant did not claim, nor was there evidence to suggest, that she met any of the other alternative sub-criteria, including those for organ donation, support person, being unfit to depart, financial hardship, or compelling personal reasons. Consequently, the Tribunal affirmed the decision not to grant the visa.

Despite affirming the visa refusal, the Tribunal considered that the case warranted referral to the Minister for consideration of discretionary intervention under section 351 of the Migration Act 1958. This referral was based on the Ministerial guidelines, which suggest consideration where there are strong compassionate circumstances leading to serious and irreversible harm or continuing hardship to an Australian citizen or family unit, or where the application of legislation may lead to an unfair or unreasonable result. The Tribunal noted the applicant's long period of residence in Australia since 2009, her integration into the community, and the compassionate circumstances surrounding her Australian citizen mother and family unit, as well as allegations of past exploitation and unfair refusal of permanent residency applications for her family members.