Xiao (Migration)

The Administrative Appeals Tribunal considered an application for a Medical Treatment (Visitor) (Class UB) visa, subclass 602, made by a Chinese citizen. The applicant had arrived in Australia in 2008 and remained in the country unlawfully after his student visa expired in 2010. He subsequently made an unsuccessful application for a permanent visa in 2014 and remained in Australia until lodging the application for the Medical Treatment visa in May 2021.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay temporarily in Australia for the purpose of receiving medical treatment, as required by clause 602.215 of the Migration Regulations. The Tribunal was required to consider the applicant's compliance with previous visa conditions, his intention to comply with the conditions of the proposed visa, and any other relevant matters. An exception to this requirement, outlined in clause 602.212(6), concerning medical unfitness to depart Australia, was considered but found not to apply as the applicant was under 50 years of age.

The Tribunal reasoned that the applicant had not provided sufficient evidence to support his claim for medical treatment, despite requests from the Tribunal. Furthermore, the Tribunal placed significant weight on the applicant's migration history, which included a period of unlawful residence, an unsuccessful permanent visa application, and a demonstrated willingness to remain in Australia beyond the validity of his visas. This history, in the Tribunal's view, raised concerns about the applicant's genuine intention to stay temporarily. The applicant failed to present any material to counter these concerns.

Consequently, the Tribunal found that the applicant did not meet the requirements for the grant of the Medical Treatment visa. The decision under review, which refused the visa, was affirmed.