HATTAM (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 602 Medical Treatment (Visitor) visa. The applicant, who was in Australia, sought to remain for medical treatment but had lodged the application out of time. The central dispute concerned whether the applicant met the requirements of clause 602.213 of the Migration Regulations, which governs applications made in Australia by persons who do not hold a substantive visa at the time of application.

The Tribunal was required to determine if the applicant satisfied clause 602.213, which necessitates meeting Schedule 3 criteria if the applicant does not hold a substantive temporary visa and is not medically unfit to depart Australia. Specifically, the Tribunal had to assess whether the applicant met criterion 3001 of Schedule 3, which requires an application to be lodged within 28 days of the "relevant day." The "relevant day" is defined by the regulations and, in this case, was the expiry date of the applicant's last substantive visa.

The Tribunal found that the applicant's last substantive visa expired on 1 June 2013, making this the "relevant day" for the purposes of criterion 3001. The application for the Medical Treatment visa was lodged on 7 April 2017, significantly outside the 28-day timeframe. Consequently, the Tribunal determined that the applicant failed to satisfy criterion 3001 and, therefore, could not meet the requirements of clause 602.213. Despite this finding, the Tribunal noted unique and exceptional circumstances, including the applicant's age, significant health issues, and the impact of his departure on his Australian citizen family, warranting referral to the Minister for discretionary consideration under section 351 of the Migration Act. The Tribunal affirmed the decision not to grant the visa.