1726951 (Migration)

This matter concerned an application for a Subclass 602 Medical Treatment (Visitor) visa. The applicant sought to remain in Australia temporarily for medical treatment. The core dispute revolved around whether the applicant met the requirements of clause 602.215 of the Migration Regulations 1994, specifically concerning the genuine temporary entrant requirement and the conditions under which an applicant might be considered unfit to depart Australia. The decision was made by Justine Clarke, a Member of the Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant met the criteria outlined in clause 602.212(6), which pertains to an applicant being medically unfit to depart Australia. This clause has several specific requirements, including having applied for a permanent visa and being refused on health grounds, and being medically unfit to depart as evidenced by a Medical Officer of the Commonwealth. Secondly, the Tribunal had to assess whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, as required by clause 602.215(1).

In reaching its decision, the Tribunal considered the applicant's oral evidence and documentary submissions. Regarding the "unfit to depart" criteria, the Tribunal found that while the applicant was in Australia and had turned 50, she had not provided evidence of having applied for a permanent visa or of being medically unfit to depart as required by a Medical Officer of the Commonwealth. Furthermore, concerning the genuine temporary entrant requirement, the Tribunal noted the applicant's submissions regarding her diagnosis of Vestibular Migraine and her desire to continue treatment and monitoring by a specialist in Australia. However, the Tribunal found no evidence that the medication or treatment was unavailable in China, nor did it find that the applicant had met the specific requirements for postponement of departure under clause 602.212(6).

Consequently, the Tribunal concluded that the applicant did not meet the requirements of clause 602.215. The decision under review, which refused the grant of the visa, was therefore affirmed.