2012567 (Migration)

[2022] AATA 4845

2012567 (Migration) [2022] AATA 4845 (28 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012567

MEMBER:Rachel Da Costa

DATE:28 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 28 March 2022 at 10:07am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – mental health issues – intends to remain in Australia indefinitely – applicant is not medically unfit to depart Australia – adverse migration history – maintain ongoing residence in Australia – not satisfied the applicant genuinely intended to remain in Australia temporarily for the purposes of medical treatment – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 602.212, 602.215

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 July 2020 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 June 2020. He included Form 1507 with his application as required but did not provide any additional documents.

3. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. The delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant met the requirements in clause 602.215. The delegate found that the applicant was attempting to use the Medical Treatment visa pathway as a means to maintaining ongoing residence in Australia and that he did not genuinely intend to remain in Australia on a temporary basis.

5. The applicant lodged his application for review of the delegate’s decision on 7 August 2020. He provided a copy of the delegate’s decision with his application.

6. The applicant appeared before the Tribunal by telephone on 11 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

7. On 24 March 2022, the applicant provided the Tribunal with copies of additional documents as follows:

   ·     Cover letter dated 23 March 2022 from the applicant which states that he left Malaysia due to an outstanding debt imposed on him which resulted in severe depression and divorce from his wife;

   ·     Copies of court documents from Malaysia (some of which are not translated into English) which appear to relate to the applicant’s pending divorce;

   ·     Letter from the applicant’s General Practitioner [dated] 17 March 2022, stating that he has been seeing the applicant for around two and a half years for stress, anxiety and depression, which the applicant continues to suffer from despite treatment and counselling;

   ·     Tax invoices from 2020, 2021 and 2022 in respect of the applicant’s consultations with his General Practitioner.  

8. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

   Background

9. The applicant is [age] years old and is a citizen of Malaysia.

10. In the Tribunal hearing, the applicant gave evidence that in Malaysia he lived in [a city] and he ran a number of [businesses]. He is separated from his wife, but not yet divorced. He is no longer in contact with her and does not know where she lives. He has two sons in Malaysia. He said that in the past he had problems with loans and debts which is why he had to leave Malaysia and the lender went after his children and they are afraid.

11. In Australia, he lives with his daughter and son-in-law. He has some savings but they are almost used up and his daughter and son-in-law help him financially. He used to work selling fruit and vegetables but he stopped that around two years ago.

    The applicant’s migration and visa history

12. The Tribunal discussed the applicant’s visa history with him as set out in the delegate’s decision and he confirmed it is correct. That visa history is as follows:

    ·     The applicant most recently arrived in Australia on [date] July 2010 as the holder of a Visitor visa and has not departed since.

    ·     On 9 November 2010, he was granted a Student visa. That visa ceased on 12 December 2012.

    ·     The applicant remained in Australia without a visa until [date] April 2014.

    ·     On 4 April 2014, the applicant applied for a Protection visa. That application was refused on 3 December 2014. He sought review of that decision up to the High Court and was unsuccessful. This appeal process was completed on 14 March 2018.

    ·     The applicant unsuccessfully sought Ministerial Intervention. The refusal was notified on 12 April 2018.

    ·     On 11 May 2018, the applicant lodged an application for a Medical Treatment visa. This application was refused and his application for review was unsuccessful.

    ·     On 15 June 2020, the applicant lodged a second application for a Medical Treatment visa which is the subject of this application for review. He currently holds a Bridging Visa E. 

13. Since 12 December 2012, the applicant has been holding bridging visas while his visa applications have been refused and associated appeals have been unsuccessful, apart from the period when he held no visa at all.

14. The Tribunal asked the applicant to confirm whether he had returned to Malaysia since he last arrived in Australia. He responded that he would go back when everything is safe for him but not now because he is afraid he might be killed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

16. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter. This requirement will not apply if the applicant is medically unfit to depart Australia.

    Is the applicant unfit to depart Australia?

17. Clause 602.212(6) requires that an applicant:

    ·is in Australia

    ·has turned 50

    ·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and

    ·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

18. The Tribunal accepts that the applicant is in Australia. The applicant confirmed in the Tribunal hearing that he is [age] years of age. The biodata page of his passport provided to the Department confirms this.

19. The applicant gave evidence that he applied for a Protection visa but his application was refused even though he submitted all the documents about what happened to him. This indicates that the applicant did not meet the criteria for that visa,[1] which are either that he is owed protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds. The material before the Tribunal does not indicate that the applicant appears to have met all the criteria for a protection visa other than the health criteria.

    [1] As set out in s 36 of the Act and Schedule 2 to the Regulations.

20. There is no evidence before the Tribunal to suggest that the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.

21. The Tribunal finds that the applicant is in Australia and has turned 50, but that he is not medically unfit to depart Australia.

22. Accordingly, the requirements of cl 602.212(6) are not met.

    Does the applicant have a genuine intention to stay temporarily for the visa purpose?

23. In the present case, the visa applicant seeks the visa for the purposes of medical treatment or consultation. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

24. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. The last substantive visa held by the applicant was a Student visa that ceased on 12 December 2012. Since that time the applicant has held a series of bridging visas. There is no evidence to suggest that the applicant did not comply with the conditions of his last substantive visa or with the conditions of subsequent bridging visas he has held, although the Tribunal notes that he has spent time in Australia without a visa.

25. The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject. Medical treatment visas are subject to condition 8201 (no studies) and may be subject to condition 8503 (the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia).

26. There is no evidence to suggest that the applicant intends to study in Australia if he is granted the visa. The Tribunal accepts that the applicant will comply with condition 8201. In relation to condition 8503, the Tribunal notes that the applicant applied for a Protection visa in 2014 and unsuccessfully sought review in the Tribunal and the courts for several years. He has remained in Australia and applied for a medical treatment visa. The Tribunal considers that the applicant has strong motivation to remain in Australia and it is possible, in light of his history and circumstances, that he will take steps to obtain a waiver of this condition.

27. The Tribunal has considered other matters relevant to assessing the applicant’s intention. In the Tribunal hearing, the Tribunal discussed with the applicant the purpose of a medical treatment visa and explained the requirement that an applicant must have a genuine intention to stay temporarily in Australia for the purpose of the visa. The applicant responded that he ’did not know’. The Tribunal explained again that it was a temporary visa and the applicant responded ‘ok’. The Tribunal asked the applicant why he applied for a Medical Treatment visa and he responded that if he didn’t see the doctor and didn’t have a visa then he could not stay in Australia.

28. The Tribunal asked the applicant about the nature of the medical conditions for which he requires treatment. He responded that he is unwell and can’t sleep and sometimes he gets swollen limbs when he walks. At the time of the Tribunal hearing, the applicant had not provided any medical evidence in support of his medical conditions other than the Form 1507 which states that he required treatment for insomnia and depression. The treatment information provided in the form states that he had been prescribed “Temaze tablets”. The Tribunal put to the applicant that he had listed depression in his Form 1507 but had not mentioned that to the Tribunal. The applicant responded that the sleeping tablets are for depression. The Tribunal asked him whether he was having any other treatment for depression and he said he was not.

29. The Tribunal asked the applicant what medical treatment he was receiving or was proposed for him. The applicant responded that he had been prescribed sleeping tablets and that he was waiting to see a specialist about his swollen limbs. He said that he has some other medical issues but they are not a problem. The Tribunal asked him whether he had an appointment to see the specialist and he responded that he had been advised to call and he might get an appointment within the next two or three months.

30. The Tribunal asked the applicant how long he wished to remain in Australia for medical treatment and he responded that it depends on his doctor. He said he is waiting for his doctor to give him the right medication and advice and so on. He said he will ask the specialist. The Tribunal asked the applicant whether he had any plan in place for his medical treatment. He said he did not know and could not say. He said his condition might become worse so he could not answer that. The Tribunal asked him when the medical treatment he is undertaking will end or is due to end. The applicant responded that he would talk to his doctor.

31. The Tribunal put to the applicant that country information indicates that Malaysia has a well-established health care system and that health care facilities are widely available in the public and private sectors.[2] It also indicates that there are medical practitioners who provide mental health services,[3] including general practitioners. It does not suggest there is a problem accessing medication. The Tribunal put to the applicant that it appeared that his medical treatment could continue or take place in Malaysia if required. The applicant said he had no comment.

    [2] DFAT Country Information Report, Malaysia, 29 June 2021, 2.21, 2.22

    [3] DFAT Country Information Report, Malaysia, 29 June 2021, 2.26

32. The Tribunal asked the applicant whether he had any other evidence to support his claim that he intends to stay temporarily in Australia for the purpose of medical treatment. The applicant asked for some additional time to obtain some information from his doctor.

33. The Tribunal put to the applicant that given he has been in Australia permanently since 2010, he has spent time in Australia without a visa and has taken many steps to try to obtain a permanent visa, that raised a concern about whether he genuinely intends to return to Malaysia or whether he is looking for a way to remain in Australia. The applicant responded that he stated the truth in his protection visa application and gave all the information. Then he became depressed and now he is about [age].

34. After the Tribunal hearing, the applicant provided the Tribunal with a copies of the documents referred to in paragraph 7 above, which include a letter from his General Practitioner about the medical treatment he is receiving for his mental health issues.

35. Having considered all the applicant’s evidence, the Tribunal does not accept that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment. It considers that he has not provided probative evidence of an intention to remain temporarily in Australia.

36. The Tribunal has considered the applicant’s oral evidence and the documents he has provided to the Tribunal in support of his application. The letter from the applicant’s General Practitioner is brief and does not provide specific particulars of the treatment being provided to the applicant for his mental health issues or the length of treatment proposed. It does not refer to any other health issues suffered by the applicant. In his oral evidence to the Tribunal, the applicant claimed that he sees his General Practitioner for various medical problems and that he is waiting to get a specialist appointment for the problem with his limbs, however he said he did not have a plan in place for his treatment and was unable to say when it might end. He did not provide any further evidence to support this.

37. The applicant’s visa history, the actions he has taken in the past in order to remain in Australia, and the oral evidence he gave at the hearing indicate that he intends to remain in Australia indefinitely and has a strong motivation to do so. The applicant is estranged from his wife. He gave evidence to the Tribunal that he fears returning to Malaysia because he is afraid he might be killed by the people to whom he claims to owe money. He said it is not safe for him to return to Malaysia now. He has been living in Australia for an extended period of time and lives with his daughter and son-in-law who help him financially. In the Tribunal’s view, there are strong incentives for the applicant to remain in Australia.

38. When the Tribunal raised with the applicant that a Medical Treatment visa was a temporary visa and that he must have a genuine intention to stay temporarily, the applicant appeared to be unaware of this until it was explained to him by the Tribunal. While the applicant later claimed that he did intend to stay temporarily in Australia, his oral evidence generally indicates that he does not have this intention. He stated that if he didn’t see the doctor and didn’t have a visa then he could not stay in Australia. He said he did not know when his medical treatment was due to end and that perhaps his condition would become worse and he did not know when his treatment would end. He also gave evidence that he would go back to Malaysia when everything is safe for him but he cannot do that now because he is afraid he might be killed. As discussed above, the medical evidence provided by the applicant does not support his claim that he intend to remain in Australia on a temporary basis for the purpose of medical treatment. The medical evidence does not set out a plan for a course of treatment, details of what that treatment would comprise, or when it will be concluded. Further, as discussed with the applicant, country information indicates that and that if he has the need for medical treatment on an ongoing basis he could access it in Malaysia.[4]

    [4] See footnote 2 above.

39. While it appears that the applicant has complied with the conditions of his past visas (albeit noting that he has spent time in Australia without a valid visa) and there is no evidence to suggest that the applicant will fail to comply with any conditions that might be attached to a Medical Treatment visa, in the Tribunal’s view these factors do not outweigh its concerns about whether the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

    Findings

40. As discussed above, the Tribunal finds that the applicant has strong incentives to remain in Australia indefinitely and does not intend to remain in Australia temporarily. The Tribunal finds that the applicant’s visa history, his personal circumstances and his evidence to the Tribunal suggest that he intends to remain in Australia. The Tribunal finds that medical evidence he provided does not support his claim that he intends to stay temporarily in Australia for the purpose of medical treatment. Accordingly, the Tribunal finds that the applicant does not have a genuine intention to remain in Australia temporarily for the purpose for which the visa is granted, namely, medical treatment.

41. Given the above findings, cl 602.215 is not met.

    Conclusion

42. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    decision

43. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

    Rachel Da Costa
    Member