PHUNG (Migration)

This matter concerned an application for a Medical Treatment (Visitor) (Class UB) visa, subclass 602, made by an applicant who was in Australia. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the grant of the visa, specifically in relation to the timing of the application and the satisfaction of Schedule 3 criteria. The applicant also sought a recommendation for ministerial intervention.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clause 602.212(6) of the Migration Regulations 1994, which relates to being medically unfit to depart Australia, and if not, whether the applicant satisfied the Schedule 3 criteria, particularly criterion 3001 concerning the timeframe for lodging the application. The Tribunal also considered whether the applicant's circumstances warranted a referral to the Minister for consideration of intervention.

The Tribunal found that the applicant did not meet the criteria under clause 602.212(6) as she had not yet turned 50 and had not applied for a permanent visa that was refused on health grounds. Consequently, the Tribunal examined clause 602.213, which requires the satisfaction of Schedule 3 criteria if the applicant was not medically unfit to depart and did not hold a substantive temporary visa at the time of application. The Tribunal determined that the applicant's last substantive visa expired on 17 January 2014, and the application was lodged on 31 May 2017. Under clause 3001, the application needed to be lodged within 28 days of the relevant day, which was the last day the applicant held a substantive visa. As the application was lodged significantly outside this timeframe, criterion 3001 was not met. Regarding ministerial intervention, while acknowledging the applicant's submissions about her Australian citizen children, the Tribunal noted that the applicant could potentially apply for a Partner visa onshore and therefore did not consider the circumstances to warrant a referral to the Minister.

The Tribunal affirmed the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.