Chhantyal (Migration)

This matter concerned an appeal by the applicant, a citizen of Nepal, against the refusal of a Subclass 602 (Medical Treatment) visa. The applicant claimed to be seeking medical treatment for depression in Australia for approximately one year, from August 2020 to August 2021. The application was supported by a form from a medical practitioner stating the condition as depression and the proposed treatment as review with a psychologist and consideration of anti-depressants, with no further medical information provided. The applicant had been residing in Australia since 2008, with a brief departure in 2012, and was currently residing in New South Wales, having previously held a Bridging visa C with a 'no work' condition.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment, as required by clause 602.215 of the Migration Regulations 1994. This required consideration of whether the applicant had complied with the conditions of her previous visas, her intention to comply with the conditions of the proposed visa, and any other relevant matters. The Tribunal also considered whether an exception to this requirement applied, specifically clause 602.212(6), which relates to applicants who are medically unfit to depart Australia due to a permanent or deteriorating condition and have been refused a permanent visa despite meeting other criteria.

The Tribunal reasoned that the exception under clause 602.212(6) did not apply as the applicant was 35 years old, had not applied for a permanent visa that met the specified criteria other than health, and there was no evidence that she was medically unfit to depart Australia. Consequently, the Tribunal was required to assess the applicant's genuine temporary stay under clause 602.215. The Tribunal noted the applicant's long period of onshore stay in Australia since 2008, her limited information regarding her medical condition and proposed treatment, and the fact that the proposed treatment period had already passed. Furthermore, the applicant's financial situation, including her reliance on others for accommodation and financial assistance, and her estranged relationship with her family in Nepal, coupled with a strong support network in Australia, were considered relevant factors. The Tribunal also noted the absence of arrangements to repay any debt to the Commonwealth.

The Tribunal affirmed the decision to refuse the visa.