Le (Migration)

This matter concerned an application by Ms Le, a citizen of Vietnam, for a Subclass 602 Medical Treatment (Visitor) visa. Ms Le, born in 1949, had a history of arriving in Australia on visitor visas between 2005 and 2012, and had remained in Australia on bridging visas since lodging an unsuccessful application for an Other Family (Residence) visa in 2012. She claimed to be undergoing treatment for depression, which was expected to last for approximately ten months. The Tribunal considered the application in light of the requirements for a Subclass 602 visa, including the need to meet specific criteria outlined in the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether Ms Le met the criteria for the grant of a Subclass 602 Medical Treatment visa. This involved assessing her eligibility under the relevant clauses of Schedule 2 of the Migration Regulations, particularly cl.602.213, and considering whether any unique or exceptional circumstances warranted referral for Ministerial intervention. The Tribunal also had to consider Ms Le's ability to participate in the review process, given her reported health condition.

The Tribunal noted that it had no discretion regarding the meeting of visa criteria. Ms Le's ability to participate in the hearing was questioned, and the Tribunal adjourned to allow for medical evidence regarding her capacity. A letter from a GP and Geriatrician indicated that while her mood had improved with treatment, her condition was progressing, with deterioration in memory, language, and comprehension. Despite these circumstances, and the fact that Ms Le was living with and financially supported by family in Australia, the Tribunal found that the applicant did not meet the requirements for the visa. The Tribunal did, however, consider that Ms Le's circumstances warranted referral to the department for consideration by the Minister under section 351 of the Migration Act 1958, in accordance with Ministerial guidelines.

The Tribunal affirmed the decision not to grant Ms Le a Subclass 602 Medical Treatment (Visitor) visa.