2216478 (Migration)

The applicant, a citizen of China, sought review of a decision by a delegate of the Minister to refuse him a Medical Treatment (Visitor) (Class UB) visa, Subclass 602. The applicant had arrived in Australia in August 2013 on a visitor visa and remained in Australia unlawfully since November 2013. He applied for the medical treatment visa in October 2019. The delegate refused the visa on the grounds that the applicant did not satisfy clause 602.215 of Schedule 2 to the Migration Regulations 1994. The Administrative Appeals Tribunal (AAT) affirmed this decision, but this was later quashed by the Federal Circuit and Family Court of Australia due to jurisdictional error, specifically the Tribunal's failure to consider mandatory relevant considerations under clause 602.215(1)(a) and (b). The matter was remitted to the Tribunal for reconsideration.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 602.215(1) of the Migration Regulations, which requires the applicant to genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. This assessment involved considering whether the applicant had substantially complied with the conditions of his last substantive visa or any subsequent bridging visa, and whether he intended to comply with the conditions of the Subclass 602 visa, as well as any other relevant matters.

In reconsidering the application, the Tribunal invited the applicant to attend a hearing and provide written information. The applicant failed to provide the requested information within the specified timeframe and did not respond to the hearing invitation. Consequently, the Tribunal proceeded to make a decision without the applicant providing oral evidence or further written submissions. The Tribunal found that the applicant had not satisfied clause 602.215 of the Regulations, noting his lengthy period of unlawful residence in Australia and the absence of evidence of medical treatment.

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