Raja Redzwa (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Subclass 602 Medical Treatment (Visitor) visa. The applicant sought to remain in Australia for medical treatment for a hand injury with neurological symptoms sustained in an industrial accident. The primary issue before the Tribunal was 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 was required to determine two key legal issues. Firstly, whether the applicant was medically unfit to depart Australia, which would engage an exception to the genuine temporary stay requirement under clause 602.212(6). Secondly, if the exception did not apply, whether the applicant otherwise satisfied the requirement of genuinely intending to stay temporarily in Australia for the purpose of receiving medical treatment, considering her compliance with visa conditions and any other relevant matters.

In its reasoning, the Tribunal found that the applicant had not provided sufficient evidence to satisfy the criteria for being medically unfit to depart Australia. Consequently, the exception under clause 602.215(2) did not apply, and the applicant was required to demonstrate a genuine intention to stay temporarily under clause 602.215(1). While the Tribunal acknowledged the applicant's compliance with previous visa conditions, it gave greater weight to other factors indicating a lack of genuine temporary intention. These included the presence of her long-term partner in Australia, who was applying for a permanent visa and provided her with financial support, and evidence from a previous unsuccessful visa application suggesting a preference to remain in Australia. The Tribunal also considered the medical evidence, which indicated that the applicant's condition was stable and unlikely to change, and that while physiotherapy was ongoing, it was stalled due to pain, suggesting the treatment process had advanced to a management stage rather than a curative one. The Tribunal was not satisfied that the applicant could not receive comparable treatment in Malaysia, despite her concerns about affordability.

Ultimately, the Tribunal concluded that the evidence indicating the applicant's motivation to remain in Australia for reasons other than solely receiving medical treatment, particularly her relationship with her partner, outweighed her stated desire to avoid remaining in Australia unlawfully. Therefore, the applicant did not satisfy the requirement of genuinely intending to stay temporarily for the purpose of the visa. The Tribunal affirmed the decision not to grant the visa.