Kamboj (Migration)

This matter concerned an application for review of a decision not to grant the applicant, Mr Kamboj, a Medical Treatment (Visitor) (Class UB) visa (subclass 602). The applicant, an Indian citizen, had been residing in Australia since 2006 and had a history of visa refusals and unsuccessful attempts to secure permanent residency. The primary dispute revolved around whether the applicant met the criteria for the subclass 602 visa, particularly in light of his outstanding debt to the Commonwealth and his adverse migration history.

The Administrative Appeals Tribunal was required to determine whether the applicant met the requirements of clause 602.215 of the Migration Regulations 1994, which concerns the genuine intention to stay temporarily in Australia. Specifically, the Tribunal had to consider whether the applicant had substantially complied with the conditions of his previous visas, intended to comply with the conditions of the subclass 602 visa, and if any other relevant matters existed. Crucially, the Tribunal also had to consider whether the exception in subclause 602.215(2) applied, which would render subclause (1) inoperative if the requirements of clause 602.212(6) were met.

The Tribunal found that the applicant had not provided evidence of being medically unfit to depart Australia due to a permanent or deteriorating disease or condition, as required by clause 602.212(6). Consequently, the exception in subclause 602.215(2) was not met. The Tribunal then considered subclause 602.215(1) and, having regard to the applicant's extensive adverse migration history, including multiple visa refusals and his prolonged, unlawful overstay, concluded that the applicant had not demonstrated a genuine intention to stay temporarily in Australia. Therefore, the Tribunal affirmed the decision not to grant the visa.