Chong (Migration)

This matter concerned an application for a Medical Treatment (Visitor) (Class UB) visa, Subclass 602, by an applicant who had remained in Australia for an extended period, including a period of unlawful residence, and whose prior application for a permanent visa had been refused. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, as required by clause 602.215 of the Migration Regulations. This required consideration of the applicant's compliance with previous visa conditions, her intention to comply with the conditions of the Subclass 602 visa, and any other relevant matters. The Tribunal also had to determine if an exception to this requirement, relating to medical unfitness to depart Australia, applied.

The Tribunal found that the exception did not apply because there was no evidence that the applicant was medically unfit to depart Australia due to a permanent or deteriorating disease or condition, as evidenced by a Medical Officer of the Commonwealth. Consequently, clause 602.215 was engaged. The Tribunal noted the applicant's lengthy stay in Australia since 2015, her unsuccessful application for a permanent visa, and her subsequent period of unlawful residence before being granted a bridging visa in association with her medical treatment visa application. Based on these findings, the Tribunal concluded that the applicant did not meet the requirements of clause 602.215, and therefore did not meet the criteria for the grant of the visa. The Tribunal affirmed the decision not to grant the applicant the visa.