2313847 (Migration)

This matter concerned an application for review of decisions not to grant the applicants a Medical Treatment (Visitor) (Class UB) visa, subclass 602. The first applicant, born in Australia, had a congenital condition requiring ongoing medical treatment. The second applicant, his mother, sought to remain in Australia as a support person for his treatment. Both applicants had a history of visa refusals, including protection visa applications, and had periods of unlawful residence in Australia.

The primary legal issue before the Tribunal was whether the applicants genuinely intended to stay in Australia temporarily for the purpose for which the Medical Treatment visa was granted, as required by clause 602.215 of the Migration Regulations 1994. This involved assessing their compliance with previous visa conditions, their intention to comply with the subclass 602 visa conditions, and any other relevant matters, including their ties to Australia and Nepal. The Tribunal also considered whether the applicants met an exception to this requirement under clause 601.212(6), which relates to being medically unfit to depart Australia.

The Tribunal found that the applicants did not satisfy the criteria for being medically unfit to depart Australia. Consequently, the requirement for a genuine intention to stay temporarily applied. While accepting the first applicant's medical condition, the Tribunal was not satisfied that the second applicant genuinely intended to depart Australia at the conclusion of the treatment. The Tribunal considered her lengthy continuous residence in Australia, her unsuccessful attempts to secure a permanent visa, her son's birth in Australia, and her facilitation of his citizenship application as evidence of a strong motivation to remain permanently in Australia. The Tribunal noted her oral testimony of returning to Nepal was not persuasive when contrasted with her previous submissions and her claimed fears for their safety in Nepal.

Given these findings, the Tribunal affirmed the decisions not to grant the applicants a Medical Treatment (Visitor) (Class UB) visa. However, the Tribunal recommended that the Department conduct an assessment of the applicants' circumstances and provide a submission to the Minister for consideration, particularly in light of the first applicant's application for Australian citizenship on the basis of statelessness.