Li (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a Subclass 602 (Medical Treatment) visa. The applicant sought to remain in Australia temporarily for medical treatment. The Tribunal was required to determine whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, as required by clause 602.215 of the Migration Regulations 1994.

The Tribunal considered whether the applicant had complied with the conditions of previous visas and intended to comply with the conditions of the Subclass 602 visa. It also had regard to whether the applicant was attempting to use the visa pathway to maintain ongoing residence in Australia. The Tribunal noted that the exception to the genuine temporary stay requirement, outlined in subclause 602.215(2) and clause 602.212(6), did not apply as the applicant did not meet the criteria for being medically unfit to depart Australia.

The Tribunal found that the applicant had not provided sufficient documentation to demonstrate an intention or incentive to depart Australia. It noted the applicant's adverse migration history, including unsuccessful onshore visa applications, which suggested an intention to seek further visa pathways to remain in Australia. The Tribunal was not satisfied that the applicant genuinely intended to remain in Australia on a temporary basis for medical treatment, concluding that the applicant appeared to be attempting to utilise the visa to maintain ongoing residence. The medical evidence provided indicated a need for 12 months of treatment, but did not establish that the applicant was gravely ill, receiving intensive or critical care, or that the treatment was unavailable outside Australia.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application, as the applicant failed to meet the requirements of clause 602.215.