ROCHA BRAGA (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision to refuse a Subclass 602 (Medical Treatment) visa. The applicant had initially applied for the visa to receive treatment for depression. However, at the Tribunal hearing, the applicant conceded that he no longer required or sought medical treatment in Australia, having recovered significantly and being unable to afford further sessions.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 602 visa, specifically clause 602.211 of Schedule 2 to the Migration Regulations 1994, which requires an applicant to seek to visit or remain in Australia temporarily for the purpose of medical treatment or a related purpose. The Tribunal also considered a request for referral to the Minister for Ministerial Intervention under s 351(1) of the Migration Act 1958, in light of the applicant's lengthy period of unlawful residence and compelling circumstances.

The Tribunal reasoned that as the applicant no longer sought medical treatment in Australia, he failed to meet the threshold requirement of clause 602.211. Consequently, it was unnecessary to consider other visa criteria. Regarding the request for Ministerial Intervention, the Tribunal noted that the applicant's period of unlawful status was not deliberate, stemming from a failure to receive a partner visa refusal notification due to an outdated email address and a subsequent bout of depression. The Tribunal accepted that the applicant was of good character, had sought to comply with his obligations once aware of his status, and had compelling personal circumstances related to his past relationship and cultural upbringing.

Despite expressing considerable sympathy for the applicant's situation and acknowledging his good character and efforts to rectify his unlawful status, the Tribunal affirmed the decision to refuse the Subclass 602 visa. The Tribunal noted that the applicant's period of unlawfulness, while not deliberate, would be viewed unfavourably by the Minister under paragraph 3 of the Minister's Guidelines.