Patel (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Patel, an applicant for a Medical Treatment (Visitor) (Class UB) visa, subclass 602. The dispute arose after the delegate refused to grant the visa, a decision that had previously been remitted for reconsideration with a direction that the applicant met a specific clause of the regulations. However, the delegate again refused the visa, this time on the basis that the applicant did not satisfy clause 602.215 of Schedule 2 to the Migration Regulations, which pertains to the genuine temporary entrant requirement.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, considering her extensive visa history and length of time onshore. The Tribunal was required to assess the applicant's immigration history, including multiple student visas, bridging visas, and previous visa refusals, as well as her current circumstances, such as having children born in Australia and a husband present in the country.

The Tribunal reasoned that the applicant had been in Australia for a continuous period of over nine years, having arrived initially on a student visa and subsequently holding bridging visas after her last substantive visa ceased over six years prior. The delegate noted that the applicant had not been granted a substantive visa since then and had experienced visa application refusals, including pursuing merits review and judicial review. Despite being invited to provide evidence of her genuine intention to depart Australia and incentives to do so, the applicant's response focused primarily on her medical condition and provided limited information regarding her departure intentions. The Tribunal found that the applicant maintained ongoing residence in Australia and, in accordance with policy, Medical Treatment visas should not be granted to applicants in such circumstances.

Consequently, the Tribunal was not satisfied that the applicant met the requirements for the grant of the visa. The decision under review, which refused the Medical Treatment (Visitor) (Class UB) visa, was affirmed.