LOPES VIANA (Migration)

This matter concerned an application for a Subclass 602 (Medical Treatment) visa by a citizen of Brazil. The applicant sought to satisfy the visa requirements as a "Support Person" under clause 602.212(4) of the Migration Regulations 1994. The applicant had previously held a Subclass 457 visa which was cancelled following the breakdown of her marriage. She subsequently commenced working as a carer for an 85-year-old widow, Ms Catherine Cunio, who became highly dependent on the applicant for daily activities and transport to medical appointments. The applicant provided documentation relating to Ms Cunio's care needs and her own role in providing that care.

The primary legal issue before the Tribunal was whether the applicant met the essential requirements for the grant of the Subclass 602 visa, specifically the criteria for a "Support Person" as defined in clause 602.212(4). This clause requires the applicant to demonstrate that they seek to provide emotional and other support to a person who holds a relevant medical treatment visa, and that the applicant satisfies public interest criterion 4005. The Tribunal was required to assess whether the applicant's role as a carer for Ms Cunio satisfied these criteria.

The Tribunal found that the applicant did not meet the requirements for the grant of the visa. While acknowledging the applicant was an honest witness and had faced difficulties due to her marriage breakdown, and noting her extensive involvement in community and charitable organisations, the Tribunal concluded that the specific criteria under clause 602.212(4) were not satisfied. The applicant's representative had indicated that the applicant might not meet the requirements and requested a referral for Ministerial Intervention under section 351 of the Migration Act 1958, which the Tribunal agreed to make.

Consequently, the Tribunal affirmed the decision under review, meaning the applicant was found not to meet the visa requirements. The case was referred to the Department for consideration by the Minister for Immigration, Citizenship and Multicultural Affairs under section 351, allowing for the possibility of a more favourable decision if deemed to be in the public interest.