Shamsher Singh (Migration)

This matter concerned an application for a Medical Treatment (Visitor) (Class UB) visa, subclass 602, by a national of India. The applicant had previously overstayed his visa and remained in Australia as an unlawful non-citizen for over four years, and had also lodged an unsuccessful application for a Protection (subclass 866) visa. The Tribunal was required to determine whether the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa was granted.

The primary legal issue was whether the applicant satisfied clause 602.215 of the Migration Regulations 1994, which requires a genuine intention to stay temporarily in Australia for the purpose of the visa. This clause requires the Tribunal to consider the applicant's compliance with previous visa conditions and their intention to comply with the conditions of the subclass 602 visa, among other relevant matters. An exception to this requirement exists if the applicant is medically unfit to depart Australia under clause 602.212(6), which involves specific criteria including being over 50 years of age and having a permanent or deteriorating medical condition.

The Tribunal found that the applicant did not meet the criteria for being medically unfit to depart Australia, as he had not reached the age of 50. Consequently, clause 602.215 applied. While the Tribunal accepted that the applicant required a gastroscopy and endoscopy for Coeliac disease, it noted the lack of further evidence of ongoing or additional treatment needs. Given the applicant's adverse migration history, including a significant period of unlawful status, and the limited evidence of ongoing medical necessity beyond the proposed procedures, the Tribunal concluded that the applicant had not demonstrated a genuine intention to stay temporarily for the purpose of medical treatment.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.