Hao (Migration)

This matter concerned an application for a Medical Treatment (Visitor) (Class UB) visa, subclass 602, heard by Member Wendy Banfield of the Tribunal. The applicant sought to remain in Australia temporarily for medical treatment. The core dispute revolved around whether the applicant genuinely intended to stay temporarily for the visa's purpose and whether he was medically unfit to depart Australia.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant was medically unfit to depart Australia, as defined by clause 602.212(6) of the Migration Regulations. This clause outlines specific criteria, including being over 50, having applied for a permanent visa and being refused on health grounds, and being medically unfit to depart due to a permanent or deteriorating condition. Secondly, the Tribunal had to assess whether the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa, as required by clause 602.215. This assessment involved considering the applicant's compliance with visa conditions, his intentions regarding future compliance, and other relevant matters, including his immigration history and personal circumstances.

The Tribunal reasoned that the applicant did not meet the criteria for being medically unfit to depart Australia. While the applicant was over 50 and in Australia, there was no evidence he had applied for a permanent visa and been refused on health grounds, nor was there sufficient medical evidence to establish he was medically unfit to depart. Consequently, the Tribunal found that clause 602.215 applied, requiring an assessment of his genuine temporary stay intention. The Tribunal noted the applicant's immigration history, including periods as an unlawful non-citizen and significant debt to the Commonwealth, as relevant factors. Furthermore, the medical evidence provided was limited to a form listing diabetes and hypertension, with no independent medical reports or evidence supporting a need for specific treatment, such as eye surgery, in Australia. The Tribunal concluded that the applicant had not demonstrated a genuine intention to depart Australia after receiving treatment.

Accordingly, the Tribunal affirmed the decision not to grant the applicant the Medical Treatment (Visitor) (Class UB) visa, subclass 602, as he did not meet the requirements for its grant.