BEENE (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a Subclass 602 (Medical Treatment) visa. The applicant, who was in Australia at the time of the application, sought to remain in Australia for medical treatment related to depression following the birth of her child. The primary issue before the Tribunal was whether the visa application had been lodged within the time frame prescribed by the Migration Regulations.

The Tribunal was required to determine if the applicant met the requirements of Clause 602.213 of the Migration Regulations, which pertains to applicants in Australia seeking a Medical Treatment visa. Specifically, the Tribunal had to consider whether the applicant held a substantive temporary visa at the time of application, or if not, whether she met the additional criteria. These additional criteria included that her last substantive temporary visa was not of a specified type and that she satisfied Schedule 3 criteria, including lodging the application within 28 days of ceasing to hold a substantive visa.

The Tribunal considered evidence from medical practitioners indicating the applicant's ongoing need for treatment and the potential negative impact on her mental health and her infant's well-being if she were forced to return to Zambia, where she lacked family support. The Tribunal noted that to satisfy criterion 3001 of Schedule 3, the application must have been lodged within 28 days of the applicant ceasing to hold a substantive visa. The Tribunal affirmed the decision under review, implying that the applicant had not met the time frame requirements for lodging her visa application.