2012567 (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Subclass 602 Medical Treatment (Visitor) (Class UB) visa. The applicant, who had turned 50 and was in Australia, sought the visa for medical treatment or consultation. The primary issue before the Tribunal was whether the applicant genuinely intended to remain in Australia temporarily for the purpose for which the visa was sought, as required by clause 602.215 of the Migration Regulations 1994.

The Tribunal was required to determine two key questions: firstly, whether the applicant was medically unfit to depart Australia, and secondly, whether the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment. The criteria for being medically unfit to depart Australia, as set out in clause 602.212(6), required the applicant to be in Australia, over 50 years of age, to have applied for a permanent visa and appeared to meet all criteria except health, and to be medically unfit to depart due to a permanent or deteriorating condition evidenced by a Medical Officer of the Commonwealth. The Tribunal considered the applicant's visa history, including a refused Protection visa application, and found no evidence that he was medically unfit to depart Australia.

The Tribunal's reasoning focused on the applicant's extensive and adverse migration history, which included remaining in Australia without a visa for a period and multiple unsuccessful applications and appeals for other visa types. The applicant's stated fear of being killed if he returned to Malaysia, while acknowledged, did not satisfy the criteria for being medically unfit to depart. Furthermore, the Tribunal was not satisfied that the applicant genuinely intended to remain in Australia temporarily for the purpose of medical treatment, given his long-standing presence in Australia and his unsuccessful attempts to secure a permanent visa. Consequently, the Tribunal found that the applicant did not meet the requirements for the grant of the visa.

The Tribunal affirmed the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.