Ouyang (Migration)

The Administrative Appeals Tribunal considered the application of Ms Ouyang for a Medical Treatment (Visitor) (Class UB) visa, Subclass 602. The applicant sought to remain in Australia for medical treatment for kidney stones, with an estimated treatment and recovery period of six months. The primary dispute concerned whether the applicant met the genuine temporary entrant requirement for the visa.

The Tribunal was required to determine whether Ms Ouyang genuinely intended to stay temporarily in Australia for the purpose of receiving medical treatment, as mandated by clause 602.215 of the Migration Regulations. This involved assessing her compliance with previous visa conditions, her intention to comply with the conditions of the proposed visa, and any other relevant matters. Crucially, the Tribunal also had to consider whether an exception to this requirement applied, specifically if the applicant was medically unfit to depart Australia under clause 602.212(6).

The Tribunal found that the exception under clause 602.212(6) did not apply because there was no evidence that Ms Ouyang was medically unfit to depart Australia due to a permanent or deteriorating condition, as required to be evidenced by a Medical Officer of the Commonwealth. Consequently, the genuine temporary entrant requirement under clause 602.215 was engaged. The Tribunal noted that Ms Ouyang had resided in Australia for over four years, had applied for permanent residency which was refused, and had not provided updated medical evidence to support her claim of needing extended treatment and recovery in Australia. Based on these findings, the Tribunal concluded that Ms Ouyang did not meet the requirements of clause 602.215.

The Tribunal affirmed the decision not to grant Ms Ouyang the Subclass 602 visa.