Elliott (Migration)

This matter concerned an application for a Medical Treatment (Visitor) (Class UB) visa, subclass 602, by a 34-year-old Fijian national. The applicant sought to remain in Australia for physiotherapy and rehabilitation following a knee reconstruction. The primary dispute before the Tribunal was whether the applicant continued to meet the criteria for the visa, particularly in light of his changed circumstances and migration history.

The legal issues before the Tribunal were whether the applicant genuinely intended to remain in Australia temporarily for the purposes of medical treatment, and whether he met the specific requirements of clauses 602.211 and 602.212 of the Migration Regulations 1994. Clause 602.211 requires the applicant to seek to visit or remain in Australia temporarily for medical treatment or related purposes, while clause 602.212 outlines various sub-criteria for meeting medical treatment requirements. The Tribunal also considered the applicant's adverse migration history, which suggested an intention to remain in Australia permanently.

The Tribunal found that while the applicant's initial application in October 2020 was for the genuine purpose of medical treatment, his oral evidence indicated he had since recovered and no longer required treatment. Consequently, the Tribunal determined that the applicant did not satisfy clauses 602.211 and 602.212. Despite this, the Tribunal noted that the applicant's circumstances, including a lack of contact with his father and no other relatives in Fiji, coupled with his residence in Australia with his mother and stepfather, might be considered a "circumstance not anticipated by relevant legislation." For this reason, the Tribunal decided to refer the matter to the Minister for consideration under section 351 of the Migration Act 1958.

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