GIRI (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Subclass 602 Medical Treatment (Visitor) visa. The primary 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 1994. This requirement is waived if the applicant is medically unfit to depart Australia, as outlined in clause 602.212(6).

The Tribunal was required to determine two key legal questions: first, whether the applicant met the criteria for being medically unfit to depart Australia under clause 602.212(6); and second, if not, whether the applicant demonstrated a genuine intention to stay temporarily in Australia for the visa's stated purpose. The latter involved assessing the applicant's past compliance with visa conditions and their intention to comply with the conditions of the proposed visa.

In its reasoning, the Tribunal found that the applicant did not meet the criteria for being medically unfit to depart Australia, specifically noting that the applicant had not turned 50, a prerequisite for clause 602.212(6). The Tribunal then considered the applicant's genuine temporary stay intention, noting the applicant's substantial period of stay in Australia since 2009, including multiple student visas, the cancellation of their most recent student visa in 2016, and unsuccessful Federal Court review proceedings. These factors, combined with the lack of evidence of medical unfitness to depart, led the Tribunal to conclude that the applicant did not satisfy the requirements for the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 602 Medical Treatment (Visitor) visa.