LU (Migration)

This matter concerned an application for a Subclass 602 Medical Treatment visa by the applicant, who was in Australia. The primary dispute revolved around whether the applicant met the requirements of clause 602.213 of the Migration Regulations 1994, particularly concerning the timing of the visa application and the applicant's fitness to depart Australia. The decision was made by Member Jane Marquard of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant satisfied clause 602.213, which applies to applicants in Australia who do not hold a substantive temporary visa at the time of application. This clause necessitates that the applicant either held a specific type of substantive temporary visa previously or, if not, is not medically unfit to depart Australia, and meets other specified criteria. Crucially, the Tribunal had to assess if the applicant's application was lodged within 28 days of the relevant day, and whether the applicant was medically unfit to depart Australia as evidenced by a statement from a Medical Officer of the Commonwealth.

The Tribunal found that the applicant's last substantive visa ceased on 9 July 1997, and the current application was lodged on 19 June 2017, significantly exceeding the 28-day timeframe required by criterion 3001 for lodging within the specified period. The applicant's submissions regarding mental distress at the time of the previous visa expiry were not considered sufficient to overcome this requirement. Furthermore, the Tribunal determined that the applicant did not meet the criteria under clause 602.212(6) as there was no evidence from a Medical Officer of the Commonwealth stating the applicant was medically unfit to depart Australia due to a permanent or deteriorating disease or health condition.

Consequently, as the applicant failed to meet the essential criteria for the visa, including the timely lodgement of the application and the requirement for medical unfitness to depart as certified by a Medical Officer of the Commonwealth, the Tribunal affirmed the decision not to grant the visa.