1910356 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 602 Medical Treatment (Visitor) visa. The applicant sought to remain in Australia temporarily to receive ongoing psychological counselling for severe anxiety and panic attacks. The central issue before the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia for the stated purpose of receiving medical treatment.

The Tribunal was required to determine if the applicant met the requirements of clause 602.215 of the Migration Regulations 1994, which mandates a genuine intention to stay temporarily for the visa's purpose. This involved assessing whether the applicant had substantially complied with the conditions of her previous visas and whether she intended to comply with the conditions of the Subclass 602 visa. An exception to this requirement exists under clause 602.212(6) if an applicant is medically unfit to depart Australia, but this exception has specific cumulative criteria, including having turned 50 years of age.

The Tribunal found that the applicant did not meet the criteria for being medically unfit to depart Australia, as she had not reached the age of 50. While the Tribunal was satisfied that the applicant had complied with the conditions of her bridging visas, this did not overcome the primary requirement of demonstrating a genuine temporary stay. The Tribunal noted that it lacked the authority to grant exemptions to travel restrictions, which are a function of the Commissioner of the Australian Border Force and decision-makers within the Department of Home Affairs.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 602 Medical Treatment (Visitor) visa. The Tribunal indicated it would communicate the applicant's circumstances to the Department for their consideration regarding any potential travel exemption, acknowledging that any decision on such an exemption rests solely with the Department or the Commissioner.