1933629 (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision by a delegate of the Minister for Immigration to refuse the applicant a subclass 602 (Medical Treatment) visa. The applicant sought to remain in Australia for treatment of lumbar spinal stenosis and radiculopathy, conditions that can cause significant nerve damage if untreated. The delegate refused the visa, finding that the applicant had not demonstrated he was gravely ill, that the treatment was unavailable in Australia, or that he intended to depart Australia at the end of his stay. The delegate concluded that the applicant intended to maintain ongoing residence in Australia and was not genuinely seeking to remain temporarily.

The AAT was required to determine whether the applicant met the criteria for the subclass 602 visa, specifically whether he intended to remain in Australia temporarily for medical treatment and whether he genuinely intended to depart Australia at the end of his stay. The Tribunal also considered the applicant's unfitness to depart Australia as a potential pathway to meeting the visa requirements. The applicant had a complex immigration history, including previous unsuccessful applications for partner visas and subsequent judicial review and appeals, which had resulted in him being in immigration detention for an extended period.

The Tribunal found that the applicant's intended stay was for medical purposes, satisfying clause 602.211 of the Migration Regulations. However, it determined that the applicant did not meet the requirements of clause 602.212(6) regarding unfitness to depart Australia, as he was not over 50 years old, had not applied for a permanent visa and met all criteria except health, and there was no evidence from a Commonwealth medical officer stating he was medically unfit to depart. Consequently, the Tribunal considered clause 602.215, which requires a genuine intention to stay temporarily. The Tribunal noted the applicant's limited family ties in Fiji, his lack of employment prospects there, and his expressed desire to remain in Australia due to his medical condition and perceived lack of support in his home country. Despite acknowledging the applicant's significant pain and the challenges of returning to Fiji, the Tribunal found that the applicant had not provided sufficient evidence to demonstrate a genuine intention to depart Australia at the end of his proposed medical treatment.

The Tribunal affirmed the delegate's decision to refuse the visa. It concluded that while the applicant's medical condition was genuine, he had not satisfied the criterion of genuinely intending to remain in Australia temporarily and to depart at the end of his stay. The Tribunal noted that the applicant had exhausted his avenues for permanent residency and had actively pursued judicial review and appeals, suggesting a desire to remain in Australia beyond the scope of a temporary medical treatment visa.