Sinhasana Daunda Patabandi Gedara (Migration) - [2025] ARTA 1336

SINHASANA DAUNDA PATABANDI GEDARA (MIGRATION) [2025] ARTA 1336 (9 JULY 2025)

CURRENTLY

DECISION AND

REASONS FOR DECISION

Applicant:Mrs Erangika Madhubhashini Wijerathne Sinhasana Daunda Patabandi Gedara
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2410342

Tribunal:Senior Member L. Symons
Place:Sydney
Date: 9 July 2025
Decision:The Tribunal affirms the decision under review

Senior Member L Symons
Statement made on 9 July 2025 at 2:40pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – mental health treatment – bogus document or false or misleading information provided with visa application by member of family unit within 3 years – husband’s English language test results provided with employer nomination visa – verification check – visa application refused and affirmed and application for judicial review in progress – discretion to cancel visa – compassionate or compelling circumstances – young child and newborn baby – adequate means to support – employment in regional area – employer willing to sponsor – visa does not provide work rights, but application may be made for financial circumstances – joint hearing with husband’s separate review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 186.213, 602.212(2)(e), (4), 602.218, Schedule 4, criterion 4020(1), (5), Schedule 8, condition 8101

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship on 16 April 2024 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied to the Department of Immigration and Multicultural Affairs (the Department) for the visa on 21 March 2024. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the applicant the visa because he was not satisfied that the applicant met the requirements of cl 602.218 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he was not satisfied that the applicant met the requirements of Public Interest Criterion (PIC) 4020. On 2 May 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for purposes of the proceeding after the 14 October 2024. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal (item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
On 25 February 2025, the Tribunal wrote to the applicant and invited her to attend a hearing on 20 March 2025. On 5 March 2025, the Tribunal received a request for a postponement of the hearing. The hearing was postponed to 22 April 2025.
The applicant appeared before the Tribunal on 22 April 2025 via video to give evidence and present arguments. The Tribunal also heard oral evidence from her husband, Mr Lakshitha Dinusha Wijerathna Peradehiwatte Gedara, and his employer, Mr Tharindu Prasad Yakoom, who gave evidence via telephone.
The hearing was conducted as a joint hearing of the applications for review lodged by the applicant and her husband with their consent. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review by Ms Angela De Silva who attended the hearing via video.
The applicant appeared before the Tribunal for a second hearing on 13 June 2025 via video to give evidence and present arguments. The Tribunal also heard oral evidence from her husband, Mr Lakshitha Dinusha Wijerathna Peradehiwatte Gedara.
The hearing was conducted as a joint hearing of the applications for review lodged by the applicant and her husband with their consent. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review by Ms Angela De Silva who attended the hearing via video.

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

Relevant law

The issue in this review is whether the applicant meets Public Interest Criteria (PIC) 4020 as required by cl 602.218 for the grant of the visa. This requires that:

Cl. 602.218

The applicant satisfies public interest criteria 4020 and 4021.
PIC 4020
(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)       the application for the visa; or
(b)       a visa that the applicant held in the period of 12 months before the application was made.

(2)         The Minister is satisfied that during the period:
(a)       starting 3 years before the application was made; and
(b)       ending when the Minister makes a decision to grant or refuse to grant the visa;

the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(2AA)     However, subclause (2) does not apply to the applicant if, at the time the application   for the refused visa was made, the applicant was under 18.
(2A)        The applicant satisfies the Minister as to the applicant’s identity.
(2B)       The Minister is satisfied that during the period:
(a)       starting 10 years before the application was made; and
(b)       ending when the Minister makes a decision to grant or refuse to grant the visa;

neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)   However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)       To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)       The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)       compelling circumstances that affect the interests of Australia; or
(b)       compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see attachment below). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

Has the applicant been refused a visa because of a failure to satisfy the criteria in PIC 4020(1) during the period starting 3 years before the application was made and ending when the Minister (or in this case the Tribunal) makes a decision to grant or refuse to grant the visa?

The applicant in this case has filed with the Tribunal a copy of the Department’s Decision Record dated 16 April 2024. It indicates that the delegate found that the applicant did not satisfy the requirements of PIC 4020(1). On 21 March 2024, the Department wrote to the applicant (pursuant to s.57 of the Act) and invited her to comment on adverse information. The adverse information was as follows:
Departmental records indicate that in the period commencing three years before the making of this application for a Medical Treatment (subclass 602) visa and ending when a decision on this application is made, a member of your family unit has been refused a visa on the ground of providing a bogus document or false or misleading information in relation to the application for that visa.
The applicant was given 7 days to comment on this information and specify if there were any compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justify the grant of the visa. The Department did not receive a response. The delegate found that the applicant did not satisfy PIC 4020 and, accordingly, did not meet the requirements of cl.602.218 of the Regulations. The application for the Medical Treatment visa was refused on 16 April 2024.
The Tribunal has considered whether the applicant has been refused a visa because of a failure to satisfy the criteria in PIC 4020(1) during the period starting 3 years before the application was made and ending when the Minister (or in this case the Tribunal) makes a decision to grant or refuse to grant the visa.
The Tribunal received pre-hearing submissions from the applicant’s lawyer in which she provided the following history. The applicant and her husband arrived in Australia in about September 2016 as the holders of subclass 500 Student visas. On 29 January 2021, they applied for Employer Nomination (subclass 186) visas. On 3 November 2021, their application was refused for failure to satisfy PIC 4020. They sought merits review before the AAT.
The applicant’s lawyer submitted that on 11 December 2023 the AAT affirmed the decision of the delegate. On 22 January 2024, they applied to the Federal Circuit and Family Court of Australia for judicial review of that decision. This application is pending before the Court. On 21 March 2024, they filed applications for Medical Treatment visas. On 16 April 2024, their applications were refused. On 2 May 2024, they applied to the AAT for merits review and these applications are the subject of this review.
The records of the Department indicate that the applicant’s husband applied for an Employer Nomination Scheme (Subclass 186) visa on the basis of the Direct Entry Stream on 29 January 2021. He filed documents with the Department to support that visa application. One of the documents he filed was an IELTS Test Result Form. That Form indicated that he undertook an IELTS test on 21 May 2019 and got scores of 8.0 for Listening, 8.5 for Reading, 8.0 for Writing, 8.5 for Speaking with an Overall score of 8.5.
The Department subsequently referred the applicant’s husband’s IELTS Test Results Form to the relevant authority for verification and was notified that those results did not match their records. The Department found that the IELTS Test Result Form he provided the Department was a bogus document.
The Department refused the application for an Employer Nomination Scheme (Subclass 186) visa on 3 November 2021 because the delegate was not satisfied that the applicant’s husband met cl.186.213 as he did not satisfy PIC 4020. The delegate found that he did not satisfy PIC 4020 because there was evidence before the Minister that he had given, or caused to be given, to the Minister a bogus document in relation to his application for the visa.
The records of the AAT indicate that the applicant’s husband applied to the AAT for merits review on 15 November 2021 and on 11 December 2023 the AAT affirmed the decision of the Department. The applicant’s husband then applied to the Federal Circuit and Family Court of Australia for judicial review of that decision. This application is pending before the Court.
The Tribunal put this adverse information to the applicant pursuant to s.359AA of the Act. She responded that she and her husband both filed IELTS Test Result Forms with the Department. They were not aware that the IELTS Test Result Forms were bogus documents. Before coming to Australia she wanted to improve her English language skills. She obtained tuition from a teacher in Sri Lanka who helped her to prepare for the IELTS test. She thinks that her teacher cheated her. She thinks she may have obtained false IELTS test results. She only needed an IELTS test result score of 4.5 for her work requirements.
The applicant’s husband was a witness in her case. He responded to the above information by stating that he agreed with what his wife said. They were not aware that the IELTS Test Result Forms were bogus documents.
The applicant’s husband, Mr Lakshitha Gedera, gave evidence at the first hearing that he did not agree with the Department’s finding that he had provided a bogus document to the Department. He went to Sri Lanka and undertook the examination there. He does not know what happened there. Something must have gone wrong. He submitted the IELTS Test Result Form with both his application for a subclass 485 visa and his application for a subclass 186 visa. He was granted the subclass 485 visa. He applied for the subclass 186 visa in January (2021) and received the nomination in June (2021). In November (2021), he was told that he had filed a bogus document. He made an application for review to the Tribunal and the Tribunal affirmed the Department’s decision. There is now an application (for judicial review) pending before the Court.
In written submissions to the Tribunal dated 15 April 2015 (sic), the applicant’s lawyer submitted that the applicant’s visa application was refused due to the fact that she and her husband were affected by PIC 4020 (based on the prior subclass 186 visa refusal in November 2021). She submitted that it is acknowledged that the grounds leading to the original refusal cannot be ‘re-litigated’.
Having considered all the evidence and the submissions, the Tribunal finds that the Department refused the application for an Employer Nomination Scheme (Subclass 186) visa on 3 November 2021 because the delegate was not satisfied that the applicant’s husband met cl.186.213 as he did not satisfy PIC 4020(1). The Tribunal finds that the applicant was a secondary applicant in relation to that application and a member of her husband’s family unit. The Tribunal finds that this decision was affirmed by the AAT on 11 December 2023 following merits review. The Federal Circuit and Family Court of Australia has not conducted a judicial review of this decision and it stands.

31.Accordingly, the Tribunal is satisfied that during the period starting 3 years before the application for a Medical Treatment (Subclass 602) visa was made on 21 March 2024 and ending when the Tribunal makes a decision to grant or refuse to grant the visa the applicant, as a member of her husband’s family unit, was refused a visa of the because of a failure to satisfy the criteria in PIC 4020(1).

Therefore, the Tribunal finds that the applicant does not satisfy the requirements of PIC 4020(2). As she does not meet this requirement, she is unable to satisfy the requirements of PIC 4020 in its entirety.

Should the requirements of PIC 4020 be waived?

The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
The Tribunal discussed with the applicant whether there are compelling circumstances that affect the interests of Australia to justify the granting of the Medical Treatment visa. She responded that she previously worked as a food service assistant at an aged care facility for 4 years. She did not need to have any qualifications for this job. She left her job in January 2025 to go on maternity leave. She would like to continue to work in the aged care sector as it is an important sector in Australia.
The Tribunal discussed with the applicant whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the Medical Treatment visa. She responded that she has been living in Australia for 5 years and has a son who is 3 ½ years old. She believes she has made a valuable contribution to Australian citizens. When asked the question again, she responded that she is currently living in Narrabri. There are few qualified people who work in this area. If she is granted the Medical Treatment visa, she is sure her services would be valuable to senior citizens in this area.
The Tribunal reminded the applicant that the visa she had applied for was a Medical Treatment visa (and not a work visa). When asked whether she was aware of whether she was allowed to work on a Medical Treatment visa, she responded that she was not sure. Her “current requirement” is that if she is granted this visa she can get treatment for her mental health issues. When the Tribunal pointed out that Medical Treatment visas do not usually have work rights, she responded that she had no idea and her lawyer suggested that she apply for this visa.
The applicant’s husband, Mr Lakshitha Gedera, is a secondary applicant in relation to the applicant’s application for a Medical Treatment visa and seeks a Medical Treatment visa as a support person. He gave evidence that he came to Australia as the holder of a Student visa. He was subsequently granted a subclass 485 Temporary Graduate visa. Whilst the holder of the subclass 485 visa, he worked as a chef. He then applied for a subclass 186 Employer Nomination Scheme visa which was refused.

The Tribunal discussed with Mr Gedera whether there are compelling circumstances that affect the interests of Australia to justify the granting of the Medical Treatment (Support Person) visa to him. He gave evidence that he has considerable experience working as a chef in Sri Lanka, in the Maldives and in Australia. He has obtained a Certificate III and Certificate IV in Commercial Cookery and a Diploma. He has a career as a chef. He has found a new employer.
The Tribunal asked Mr Gedera why these are compelling circumstances that affect the interests of Australia. He responded that he has a son who is 3 ½ years old and his wife is pregnant. He thinks his skills and services are needed in Australia.
The Tribunal asked Mr Gedera whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the Medical Treatment (Support Person) visa to him. He responded that he is working in two restaurants; one at a golf club and the other at a bowling club. Most of the customers are seniors. He is very popular. They ask about him and are satisfied with the services he provides. When asked why he is important to the customers, he responded that they are regular customers and know him. He is popular among them.
The Tribunal asked Mr Gedera whether he is aware of whether or not he is allowed to work if granted a Medical Treatment (Support Person) visa. He responded that he did not know and would need to ask his lawyer about that. The Tribunal noted that his case (before the Tribunal) is based on him being able to work and that he would probably not be able to work on that visa. He responded that the urgency is to find a small period of time to deal with the current situation. His intention is to leave the country and return to Sri Lanka. He will then apply for a visa off-shore. He is planning to apply for an employer sponsored visa and his current employer is prepared to sponsor him.
Mr Gedera’s employer, Mr Tharindu Prasad Yakoom, gave evidence that he was granted a subclass 491 Skilled Work Regional (Provisional) visa on 17 December 2024 and is entitled to a permanent visa after 3 years. He and his wife run two restaurants which are based at a golf club and a bowling club. The restaurant at the golf club has an Australian menu and the restaurant at the bowling club has an Australian and Sri Lankan menu. On 10 January 2025, he hired Mr Gedera as a chef to work at his restaurant in the golf club. His Resume indicates that he has formal qualifications obtained in Australia. This includes a Certificate III and a Certificate IV in Hospitality or Cookery. He also has experience working as a chef in the Maldives and in Australia.

44.The Tribunal asked Mr Yakoom whether he was aware of Mr Gedera’s immigration status in Australia and he responded yes. He is on a Bridging E visa which allows him to work in Australia. Mr Gedera told him he has an issue. He told him that he could continue working with him but would need to resolve the issue. He also told him that if he needed a sponsor he was willing to assist him. He is a capable and efficient person. He would not usually help a person like that. He discussed the issue with his lawyer who advised him to make more inquiries.
45.The Tribunal asked Mr Yakoom whether he was aware of what type of visa Mr Gedera would need to continue working in his restaurant. He responded that, regardless of the visa, if he has work rights he can work in the restaurant. When asked whether he was aware that the current visa he has applied for does not have work rights, he responded that he did not know that. When asked whether he had obtained immigration advice (in relation to Mr Gedera), he responded that if there is an issue he would hand it over to his lawyer.
46.The Tribunal raised a number of issues with the applicant and her husband, Mr Gedera. The Tribunal noted that her case to waive the requirements of PIC 4020 was based on her husband’s work (as a chef in regional Australia) when there were no work rights for a Medical Treatment (Support Person) visa. She responded that her purpose is to give birth to her second child and receive treatment in Australia. Even though she has work rights now, she cannot work for 1 ½ years from now. After next month, she will have two children. She is giving birth by caesarean section. She will need time to recover. She will get a Medical Treatment visa. At the second hearing, she gave evidence that she gave birth to a baby daughter on 26 May 2025.
47.Mr Gedera responded that they have saved some money. If he needs to borrow money, he can do so from his aunt (who lives in Australia).
48.The Tribunal asked the applicant who will pay for her medical treatment. She responded that she and her husband have approximately $10,000.00 in savings. When asked whether she will need that money for the birth of her second child, she responded that they have Medicare. When asked for what period of time she is seeking the Medical Treatment visa, she responded that she has no idea. She will need to get stable with this situation. It is difficult for her to deal with two children. She is really stressed. She speaks to counsellors. She does not care about work rights for her now. She wants to get the treatment and go offshore. Her husband’s employer is willing to sponsor them.

Mr Gedera gave evidence that he and the applicant had $10,000.00 in savings. When asked for what period of time he was seeking his visa, he responded until his wife “settled”. When asked how long that would be, he responded that he had no idea. He had two children to manage.
The Tribunal raised as issues with the applicant and her husband the fact that they both stated that they had savings of $10,000.00 but did not know for how long a period they wanted their visas and, in any event, had not provided any evidence of these savings. They both responded that they could provide that evidence to the Tribunal. Following the hearing, the Tribunal was provided with a Proof of Account Balance from the Westpac Bank in relation to an account in the applicant’s name showing a balance of $13,643.37 as of 22 April 2025. The Tribunal was also provided with a Commonwealth Bank statement in relation to an account in the applicant’s husband’s name showing a balance of $2,017.83 as of 22 April 2025.
In pre-hearing submissions dated 15 April 2025, the applicant’s lawyer referred to the criteria for a Medical Treatment visa, Departmental policy and case law. In relation to PIC 4020 and the exercise of the discretion to waive PIC 4020, the submission focussed on the applicant’s husband’s work as a chef in regional Australia. Reference was made to two AAT cases with respect to the exercise of the discretion to waive the requirements of PIC 4020. One of the cases is incorrectly cited and the other refers to an applicant for an Employer Nomination Scheme (subclass 186) visa and not a Medical Treatment visa. In any event, the Tribunal is not bound by decisions of the AAT.
In pre-hearing submissions dated 15 April 2025, the applicant’s lawyer submitted that it is the intention of the applicant to complete her mental health treatment to stabilize her condition, prevent further deterioration and then depart Australia. Based on her evidence to the Tribunal, the Tribunal is not satisfied that it is her intention to depart Australia.
In oral submissions, at the end of the first hearing, the applicant’s lawyer submitted that the applicant is seeking a waiver of PIC 4020. She cannot work due to her pregnancy and giving birth by caesarean section. If her husband is granted a Medical Treatment visa as a support person he will not have work rights. He will be able to apply for work rights due to their financial circumstances. In those circumstances, she submitted that the Tribunal should consider his work experience and contribution to Australia. Chefs are on the migration list in various programs. They are in a regional area in Australia where it is difficult to secure a work force and to source workers in this area. The club is a central and focal point in the community and not having a chef is significant.

54.The applicant’s lawyer made oral submissions that the applicant and her husband always abided by the conditions of their Student visas. She later stated that they had been living in Australia unlawfully at some point because their previous representative did not enact the process for Bridging visas. She submitted that the applicant and her husband have no family in Australia other than the applicant’s husband’s aunt. They plan to apply for visas offshore. Whether the applicant can get treatment offshore is not a deciding factor. She has had treatment in Sri Lanka. She suffered from anxiety and depression when her father passed away. The fact that she has previously applied for a permanent visa should not be a deciding factor. The Tribunal should consider the current circumstances. When the applicant is well enough she can travel back to Sri Lanka.

The Tribunal does not find these submissions to be persuasive as neither the applicant nor her husband are applying for Employer Nomination Scheme (subclass 186) visas or any other type of work visa. They have applied for a Medical Treatment visa and a Medical Treatment (Support Person) visa respectively. One of the criterion for a Medical Treatment visa is cl.602.216 which requires the applicant to have adequate means to support herself or access to adequate means to support herself during the period of her intended stay in Australia.
The applicant, as the primary applicant, and her husband, as the secondary applicant and her support person, are required to meet the requirements of cl.602.212(2)(e) which requires that arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant's stay in Australia, including the expenses of any person accompanying the applicant. Further, condition 8101 (No work) is a mandatory condition for this visa. Whilst there is provision in the legislation for an application to have this condition waived on the basis of financial hardship, there is no guarantee that such as application would be successful.
In considering whether there are compelling circumstances that affect the interests of Australia that justify the granting of the Medical Treatment visa to the applicant, the Tribunal has had regard to her evidence that she previously worked as a food service assistant at an aged care facility for 4 years. She did not need to have any qualifications for this job. She would like to continue to work in the aged care sector as it is an important sector in Australia.
The Tribunal considers that, even if the applicant is able to get a waiver of condition 8101 and return to work as a food service assistant at an aged care facility, this is not a skilled job and is not a compelling circumstance that affects the interests of Australia to justify the granting of a Medical Treatment visa which is granted for the primary purpose of seeking medical treatment. In any event, the applicant’s evidence is that she cannot work for the next one and a half years as she has to care for two young children.
It has been submitted that the Tribunal should consider the applicant’s husband’s employment in regional Australia as he will be seeking a waiver of condition 8101 to enable him to continue to work and support the applicant and their children. As this is discretionary, there is no guarantee that he would be successful in such an application. He has applied for a Medical Treatment (Support person) visa. The primary purpose of this visa is to provide emotional and other support to the applicant. (cl.602.212(4)). This does not include financial support as he is required to meet the requirements of cl.602.212(2)(e) referred to above.
The Tribunal accepts that the Mr Gedera has been working in his current job as a chef in a club in regional Australia since January 2025. The Tribunal accepts that there is a shortage of skilled workers in regional Australia. His employer, Mr Yakoom, stated in his written statement that he operates in a regional location and it is difficult to find skilled chefs to work in the business. His evidence is that he is prepared to sponsor Mr Gedera for a work visa. The Tribunal considers that this would be the best option for Mr Gedera if he wishes to work and contribute to the interests of Australia.
Having considered all the evidence and the submissions, the Tribunal is not satisfied that there are there are compelling circumstances that affect the interests of Australia that justify the granting of the Medical Treatment visa to the applicant.
In considering whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the granting of the Medical Treatment visa, the Tribunal notes that when this was discussed with the applicant she initially focussed on why she should be granted the visa. She then stated that, if she is granted the Medical Treatment visa, she is sure her services would be valuable to senior citizens in the area. There are few qualified people who work in this area.
The applicant’s evidence is that she previously worked as a food service assistant in an aged care facility and did not need any qualifications for this job. She also stated that she will not be able to work for the next one and a half years as she has to care for her two young children. In any event, she did not identify any particular Australian citizen, Australian permanent resident or eligible New Zealand citizen whose interests would be affected if she is not granted the Medical Treatment visa.
The applicant’s lawyer has submitted that there are compelling circumstances that affect the interests of Mr Gedera’s employer, Mr Yakoom, that justify the granting of the visa. Mr Yakoom’s evidence is that he was granted a subclass 491 Skilled Work Regional (Provisional) visa on 17 December 2024 and is entitled to a permanent visa after 3 years. As he is on a temporary work visa, he is not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Mr Gedera gave evidence that members of the club where he has worked since January 2025 are mainly seniors. He is popular among them. They ask about him and are satisfied with the service he provides. There is no evidence before the Tribunal to indicate whether they are Australian citizens, an Australian permanent residents, or an eligible New Zealand citizens. Even if they are, the Tribunal is not satisfied that Mr Genera’s popularity among them and their satisfaction with his services are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justify the granting of the Medical Treatment (Support person) visa to Mr Gedera. The Tribunal is also not satisfied that it justifies the granting of a Medical Treatment visa to the applicant.
Findings

66.Having considered all the evidence and the submissions, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the Medical Treatment visa to the applicant.
67.Accordingly, the Tribunal is not satisfied that the requirements of PIC 4020 should be waived.

CONCLUSION

68.In view of the above, the Tribunal finds that the applicant does not satisfy the requirements of PIC 4020(2) and accordingly is not able to satisfy the requirements of PIC 4020 in its entirety.
69.Therefore, the Tribunal finds that the applicant does not satisfy the requirements of cl.602.218 for the purpose of PIC 4020.

DECISION

70.The Tribunal affirms the decision not to grant the applicant a Medical Treatment visa.

Date of hearing: 22 April 2025 and 13 June 2025

Representative for the applicant:Ms Angela De Silva