Myint (Migration)

The Administrative Appeals Tribunal considered an application by Mrs Mar Mar Myint for a Subclass 602 Medical Treatment visa. The delegate had previously refused the application, finding that the applicant had not provided sufficient evidence that the required chemotherapy, scans, or consultations were unavailable in her home country of Burma (Myanmar) or elsewhere, nor that she was unable to access such services. The delegate also noted the applicant's extensive history of stays in Australia and multiple previous visa applications, concluding that compelling and exceptional circumstances had not been demonstrated to warrant a further stay.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, as required by cl.602.215 of the Migration Regulations 1994. This involved assessing whether the applicant's medical condition necessitated treatment in Australia, whether such treatment was unavailable in her home country, and whether she was medically unfit to travel or depart Australia. The Tribunal also considered the applicant's ties to her home country and any incentive to depart.

The Tribunal's reasoning focused on the further medical evidence and reports presented since the delegate's decision. A report from St Vincent’s Hospital provided an update on the applicant's medical status, her estimated life expectancy, the nature of her treatment (including pain relief), her fitness to travel, and the role of her husband as her sole support person. The Tribunal found that this new evidence warranted reconsideration of the applicant's eligibility.

Consequently, the Tribunal remitted the application for a Subclass 602 visa for reconsideration by the Minister, with a direction that the applicant meets the criteria under cl.602.215 of Schedule 2 to the Regulations. This indicates that the new evidence was sufficient to satisfy the Tribunal that the applicant's circumstances, particularly concerning her medical condition and the availability of treatment, warranted further assessment against the visa requirements.