Le (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 602 Medical Treatment (Visitor) visa. The applicant had been in Australia on a medical treatment visa, and the core of the dispute revolved around whether the applicant met the criteria for remaining in Australia for medical treatment purposes, specifically concerning their fitness to depart and their genuine intention to stay temporarily.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant was medically unfit to depart Australia, as contemplated by clause 602.212(6) of the Migration Regulations 1994. Secondly, the Tribunal had to assess whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, pursuant to clause 602.215 of the Regulations.

The Tribunal reasoned that the applicant did not satisfy the criteria for being medically unfit to depart Australia under clause 602.212(6), as they had not turned 50, had not applied for a permanent visa and been refused on health grounds, and there was no evidence from a Medical Officer of the Commonwealth indicating a permanent or deteriorating disease or condition rendering them unfit to travel. Consequently, the exception to the genuine temporary stay requirement under clause 602.215 did not apply. The Tribunal then considered the applicant's history, noting their arrival in May 2013, a departure and return between March and May 2015, and a previous student visa refusal on the grounds of not being a genuine student and seeking to maintain residence in Australia. Based on this history and the failure to meet the medical unfitness criteria, the Tribunal concluded that the applicant did not genuinely intend to stay temporarily in Australia for the visa purpose.

The Tribunal affirmed the decision under review, finding that the applicant had failed to satisfy the requirements of the Subclass 602 visa.