Le (Migration)

This matter concerned an application for a Subclass 602 Medical Treatment (Visitor) visa. The applicant, who was heavily pregnant at the time of her visa application, sought to remain in Australia. The core of the dispute revolved around whether the applicant genuinely intended to stay temporarily in Australia for the purpose of medical treatment, as required by clause 602.215 of the Migration Regulations. The applicant had also previously applied for a permanent visa and had been in Australia unlawfully for a period.

The Tribunal was required to determine if the applicant met the requirements of clause 602.215, specifically whether she genuinely intended to stay temporarily in Australia for the visa purpose. This involved considering her compliance with previous visa conditions and her intention to comply with the conditions of the Subclass 602 visa. Crucially, the Tribunal also had to assess whether an exception to this temporary stay requirement applied, as outlined in subclause 602.215(2) read with subclause 602.212(6). This exception relates to applicants who are medically unfit to depart Australia due to a permanent or deteriorating disease or condition, evidenced in writing by a Medical Officer of the Commonwealth.

The Tribunal found that the applicant did not meet the requirements of clause 602.215. While the applicant's circumstances, including caring for ill family members and her pregnancy, were noted, the critical factor was the absence of a written statement from a Medical Officer of the Commonwealth evidencing a permanent or deteriorating disease or health condition that rendered her medically unfit to depart Australia. Without this specific written evidence, the exception under subclause 602.212(6)(f) could not be satisfied, and therefore, the general requirement of a genuine intention to stay temporarily for the visa purpose was not met.

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