KUMAR (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr Kumar, who sought review of a decision to refuse his application for a Medical Treatment (Visitor) (Class UB) visa, subclass 602. Mr Kumar had applied for this visa on the basis that he was medically unfit to depart Australia. The primary decision maker had refused the visa, finding that Mr Kumar did not meet the criteria for a genuine temporary entrant and that his circumstances did not warrant a referral to the Minister for a favourable exercise of discretion.

The Tribunal was required to determine whether Mr Kumar was medically unfit to depart Australia, whether he met the criteria for a genuine temporary entrant, and whether the circumstances warranted a referral to the Minister for a favourable exercise of discretion under s 48B of the *Migration Act 1958* (Cth). Mr Kumar's application was based on a mental health condition, and the Tribunal also considered his personal circumstances, including his age (under 50), his purchase of a business in Australia, and the presence of his siblings in Australia.

In its reasoning, the Tribunal acknowledged Mr Kumar's mental health condition but found that the medical evidence did not establish that he was medically unfit to depart Australia. The Tribunal also found that Mr Kumar had not satisfied the Tribunal that he was a genuine temporary entrant, noting that his intention to purchase a business and the presence of his siblings in Australia suggested a stronger intention to remain in Australia than to temporarily visit for medical treatment. Consequently, the Tribunal concluded that the circumstances did not warrant a referral to the Minister for a favourable exercise of discretion.

The Tribunal affirmed the decision under review, meaning Mr Kumar's visa application was refused.