2014249 (MIGRATION)

[2022] AATA 2315

2014249 (MIGRATION) [2022] AATA 2315 (16 MAY 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014249

MEMBER:Naomi Schmitz

DATE:16 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

·cl 602.215 of Schedule 2 to the Regulations

Statement made on 16 May 2022 at 10:42am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – visa and medical history – long stay and unsuccessful applications for permanent visa, with tribunal review and judicial appeals – car accident, multiple physical and mental health conditions – treatment limited by COVID-19 restrictions and original period of treatment now passed – efforts to depart made – credible and reliable evidence and extensive medical reports provided – country information – same-sex relationship – legal restrictions and community attitudes – passport not renewed and travel restrictions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A, 360
Migration Regulations 1994 (Cth), 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 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 28 August 2020. 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).

3. On 7 September 2020 the delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia for the purpose for which the visa would be granted cl. 602.215.

4. On 21 September 2020 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 9 March 2022 the Tribunal wrote to the applicant for three reasons.

6. The first reason was to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 11:00am on 28 March 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. The second reason was to invite the applicant under s.359A of the Act to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review, namely the applicant’s migration record outlined in the delegate’s decision record referred to below. This notice also provided further particulars that were not included in the delegate’s decision record. The notice stated that the applicant’s migration history suggests that the applicant wishes to stay permanently in Australia.

8. The third reason was to request under s.359(2) of the Act that the applicant provide the Tribunal with information addressing the following:

   ·Immigration records demonstrate that you arrived in Australia on an Electronic Travel Authority visa (subclass 601) on 10 August 2013 which was valid until 10 November 2013. You subsequently made unsuccessful applications for Permanent [visas] which were refused. Immigration records disclose that you have remained in Australia since that time. Why did you not depart Australia after this date?

   ·In your medical treatment visa application, you claimed that you would like to remain in Australia from 28 August 2020 until 28 August 2021 to seek medical treatment for morbid obesity, anxiety/depression, adjustment disorder, post-traumatic stress disorder, chronic back pain, chronic insomnia, and previous fractured ribs. Immigration records demonstrate that you have remained in Australia since that time. Why have you remained in Australia since 28 August 2021?

   ·The Tribunal does not have current medical evidence concerning your medical treatment. Please provide information regarding

   oWhen you were first diagnosed with those condition(s);

   oWhat your current medical treatment for those condition(s)/treatment(s) involves;

   oThe prognosis of your medical condition(s); and

   oWhen does the medical treatment you have undertaken end or when is it due to end?

   ·Noting that you have been in Australia since 10 August 2013 please provide any other evidence which indicates that you have a genuine intention to stay temporarily in Australia for the purpose of medical treatment.

9. The request for information was accompanied by various administrative matters, and advised the applicant that if the information was not provided in writing by 23 March 2022, the Tribunal hearing scheduled on 28 March 2022 would be cancelled and the Tribunal would make a decision on the information it had without taking any steps to allow or enable the applicant to appear at the Tribunal: s.360(3) of the Act.

10. In response the applicant provided a report from Dr Hany Hanna dated 23 March 2022; a psychological report from Edwin Kleynhans dated 24 March 2022; two reports from Orthopaedic Surgeon Dr Russell Miller dated 6 September 2021 and 4 April 2021; the applicant’s response to information sought by the Tribunal pursuant to s.359(2); a statement from the applicant; a statement from the applicant’s partner dated 24 March 2022 and copy of the applicant’s marriage certificate.

11. The applicant appeared before the Tribunal on 28 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.

12. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

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

14. 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 as described in cl 602.212(6) which 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.

15. The applicant is currently residing in Australia. Documents provided by the applicant show that the applicant has not turned 50, being born on [Date] and is thus currently 31 years of age. The applicant has applied for a permanent visa, namely a [specified] visa that was refused. The Tribunal has no evidence before it that the applicant is physically or otherwise medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth. Given the above findings, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

    602.215

    (1) The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

    (a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

    (b)  whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and

    (c)  any other relevant matter.

    (2)  However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

16. The delegate’s decision record detailed the applicant’s migration history.

17. The applicant first arrived in Australia on 10 August 2013 on an Electronic Travel Authority visa (Subclass 601) which ceased on 10 November 2013. The applicant has not departed Australia since.

18. Whilst onshore on 24 October 2013, the applicant subsequently made an application for a [permanent] visa.

19. The Department received information that the applicant had provided false documentation and the application was refused on 22 July 2014.

20. The applicant subsequently applied to the Tribunal for review of the decision. On 27 June 2016 the Tribunal affirmed the delegate’s refusal decision.

21. The applicant subsequently sought judicial review at the Federal Court which was unsuccessful on 10 September 2018. The applicant sought further judicial review at the Full Federal Court which resulted in a Minister win on 13 November 2019.

22. On 11 December 2019 the applicant made a second application for a permanent [visa] which was not allowed.

23. The applicant has not held a substantive visa since 11 November 2013 and has been on a succession of bridging visas.

24. The applicant is currently a holder of Bridging visa (Subclass 050) which has an 8101 ‘no work condition’.

    CONSIDERTION OF CLAIMS

25. The applicant is a citizen of Malaysia. In the applicant’s visa application the applicant claimed her stay would be funded by her partner. The applicant wrote the purpose of her stay in Australia was medical treatment for approximately one year from 28 August 2020 until 21 August 2020. The applicant claimed she was seeking medical treatment for ‘for morbid obesity, anxiety/depression, adjustment disorder, post-traumatic stress disorder, chronic back pain, chronic insomnia, and previous fractured ribs’.

26. Attached to the visa application was a 1507 Form signed by Dr Hanny Hanna of the Sunbury Square Medical Centre on 13 August 2020. It detailed the medical condition requiring treatment as ‘chronic back pain, chronic pain (indecipherable) anxiety/depression and PTSD’. The treatment information was ‘see report’.

27. Attached to the 1507 Form was a report from Dr Hany dated 26 May 2020 stating the applicant had the following medical conditions ‘morbid obesity; anxiety/depression; adjustment disorder; post-traumatic stress disorder; chronic back pain; chronic insomnia and history of fractured ribs’. The treatment plan for these medical conditions included ‘GP regular reviews; regular counselling provided by GP; referral to psychiatrist; regular medication; dietician involvement and physiotherapy involvement’.

28. At hearing the applicant stated that although she had received some medical treatment sought in the original application (physiotherapy and two psychologist counselling sessions), and had made multiple efforts, due to the prolonged COVID-19 lockdowns in Victoria she has been significantly prevented from obtaining treatment. The applicant provided the Tribunal with a psychological report and medical reports which provided corroborative evidence of the significant patient backlogs and cancelation of health services due to the COVID-19 pandemic which the Tribunal accepts as credible and independent evidence. The applicant stated that she continued to have pain in her spine and knee and had psychological issues. Medical evidence submitted to the Tribunal supports the applicant’s claims that she has problems with her lumbar spine, left knee which may require arthroscopic treatment and medical investigation and has psychological issues as a result of a motor vehicle accident in April 2019 and the applicant’s LGBTIQ+ status. The Tribunal accepts the medical evidence submitted by the applicant.

29. At hearing the applicant gave evidence that she was currently residing with her partner in Kingsbury, Victoria. Documents submitted by the applicant show the couple met in December 2017 and in June 2018 they commenced residing together. The applicant and her partner married in December 2018 and have been married for approximately four years. The applicant stated she has one cousin who resides in Melbourne who is a permanent resident. All other family members reside in Malaysia, including her parents, two brothers, aunties and uncles. She stated she has a good relationship with her family; however they are unaware of her LGBTIQ+ status.

30. The Tribunal Member asked about the applicant’s partner’s migration status. The applicant’s partner gave evidence that she applied for a Protection visa that was refused. She has applied to the Tribunal for a review of the refusal decision, but the matter is yet to be listed for hearing. The applicant’s partner is currently on a bridging visa and has work rights. The applicant’s partner gave evidence of working at a food manufacturing company, as an inventory controller in the logistics department earning approximately $66,000 per annum. The applicant gave evidence that she is entirely financially supported by her partner and has not worked since a motor vehicle accident in April 2019, which has rendered her unable to work due to multiple physical injuries. She also stated as a sequalae she has psychological issues. Prior to her accident the applicant worked as a laundry assistant. The applicant’s partner gave evidence of financially supporting the applicant, including paying their rent, health insurance and daily living expenses. Bank records in the departmental file confirm the same.  

31. The applicant does not have any significant assets in Australia and is currently leasing a property with her partner. The lease is in both their names and due for renewal in October 2022. The applicant stated prior to migrating to Australia, she worked for a chemical company in Malaysia for four years, packaging chemicals.

32. At hearing the applicant gave evidence that she has never been an unlawful non-citizen and has never breached any of the conditions of her previous substantive and/or bridging visas. The applicant was adamant that she had not worked since her car accident. The Tribunal Member explained to the applicant that a Medical Treatment visa would not permit her to work due to the ‘no work’ condition and asked how she would be financially supported if the visa were to be granted. The applicant stated that she would have the financial support of her partner. The applicant’s partner gave evidence of the same.

33. The Tribunal Member told the applicant that it had reviewed the applicant’s migration history which suggested that she wished to stay permanently in Australia and would not leave. The applicant and her partner acknowledged the applicant’s prior applications for [permanent] visas; however both stated they were fully aware that the Medical Treatment visa was a temporary visa only and that the applicant did not have an intention to stay permanently in Australia. Both the applicant and her partner were aware that the applicant is legislatively barred from making another [specified] visa application onshore.[1]

    [1] s.48 Migration Act 1958 (Cth)

34. The applicant maintained her current application was legitimate and the result of a motor vehicle accident where she sustained multiple significant injuries (physical and psychological) and to deal with her LGBTIQ+ issues. She stated that due to the sustained COVID-19 lockdowns during 2020 and 2021, she had only recently engaged in counselling, but needed further time for psychological treatment and to get medical treatment for her back and knee. The applicant’s partner also claimed the applicant would be unable to receive psychological treatment for her LGBTIQ+ issues due to Malaysia’s poor treatment of LGBTIQ+ people and homosexuality being illegal.

35. During the hearing the Tribunal Member as ‘any other relevant matter’ put various country information to the applicant and her partner and stated this may appear to be a disincentive to return. Country information indicates that Malaysia is a conservative Islamic nation, where there is widespread official and societal disapproval of LGBTIQ+ identities and behaviours and same-sex acts are illegal.[2] Homosexuality is not tolerated by the community generally or by any of the religious faiths in Malaysia. There are credible accounts of men and women being abused, threatened, physically assaulted and even murdered for reasons of their sexual orientation and/or gender identity.[3] The 2017 US Department of State Report on Human Rights Practices stated that Malaysia’s ‘most significant’ human rights issues include ‘discrimination against lesbian, gay, bisexual, transgender, and intersex persons’, and that ‘authorities often charged transgender individuals with ‘indecent behaviour’ and ‘importuning for immoral purposes’ in public”.[4] No protection or representation for gay individuals is afforded by LGBT rights groups in Malaysia. Out Right Action International had recently analysed 194 countries and found that 109 allowed LGBT groups to register legally. In Malaysia, LGBT groups are banned outright.[5]

    [2] Department of Foreign Affairs and Trade County Information Report: Malaysia – 19 December 2019

    [3] See, for example: Lamb, Kate, Women caned in Malaysia for attempting to have lesbian sex, The Guardian, 3 September 2018; Dittrich, Boris, Transgender Woman Murdered in Malaysia, Human Rights Watch, 24 February 2017; Koh, H, Hate crimes against trans people in Malaysia: A silent radicalisation?, Malay Mail, 13 December 2017; and Yi, Beh Lih, A brutal assault and rising fear in Malaysia's LGBT community, Reuters, 24 August 2018.

    [4] US Department of State, Country Reports on Human Rights Practices for 2017, Malaysia.

    [5] See H Greenhalgh “LGBT groups banned from organising around the world, says report” Reuters (7 August 2018).

36. The applicant and her partner did not dispute the country information, rather they submitted that it bolstered their argument that the applicant genuinely sought medical treatment in Australia that was unavailable in Malaysia.

37. The applicant’s partner stated that they had previously made efforts for the applicant to depart Australia, but when they applied for a renewal of the applicant’s passport, it was refused by the Malaysian Embassy due to the applicant’s prior [specified] claim. Departmental records confirm that the applicant repeatedly contacted the Consulate General of Malaysia to have a travel document issued to the applicant. This was also unsuccessful due to the applicant being unable to secure a flight ticket due to COVID-19 and the consequential limited flight availability and travel restrictions.

    FINDINGS and REASONS

38. In the present case, the applicant seeks the visa for the purposes of medical treatment including physiotherapy, knee treatment/surgery and psychological treatment for depression, anxiety, PTSD and her LGBTIQ+ status and associated problems. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

39. The Tribunal is satisfied that the applicant has complied substantially with the conditions of her last substantive visa and subsequent bridging visas. The Tribunal is also satisfied that the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject, including the no work and three month study limit. The Tribunal is satisfied that the applicant will comply with her ‘no work’ condition given her poor state of physical and mental health and having a partner who is gainfully employed and able to financially support her. The applicant also did not indicate an intention to undertake any studies. Medical evidence also suggests she is unfit to undertake studies. The Tribunal also notes the language barrier.

1. The Tribunal has considered all relevant matters. As outlined above, the applicant suffers from multiple psychological and physical issues. Due to the complexity of her medical conditions she still requires treatment and investigation from medical specialists in Australia. There is no evidence before the Tribunal to suggest that the applicant’s medical treatment for these conditions will be indefinite. Nor is there medical evidence to suggest that her treatment will require a permanent stay in this country. Ultimately, the Tribunal is satisfied that the applicant will depart Australia at the conclusion of her treatment. This weighs in favour of the applicant being granted the Subclass 602 visa.

2. In addition, the Tribunal has had regard to the applicant’s migration history. The Tribunal Member was originally troubled by the applicant’s visa history which discloses that the applicant on two prior occasions applied for a permanent visa, namely two [specified] visas, one of which was refused and the other ‘not considered’. However, given the cogent medical evidence submitted showing the applicant’s significant physical injuries sustained in a motor vehicle accident and the medical evidence that the applicant has been significantly hindered from seeking medical treatment due to Victoria’s repeated lockdowns, the Tribunal places limited weight on the applicant’s migration history. The Tribunal is satisfied that the applicant has genuine health issues and has made multiple efforts to seek treatment without success. The Tribunal further accepts that the applicant would be unable to receive mental health treatment for her LGBTIQ+ issues in Malaysia due to the country information referred to above. The Tribunal also notes that mental health services in Malaysia are limited, due to the lack of mental health professionals and the significant stigma attached to mental health in Malaysia.[6]

   [6] DFAT Country Report op.cit paragraph 2.26

3. Further, the applicant and her partner gave full and frank answers and both understood that the Medical Treatment visa is a temporary visa only. They understood that a further [specified visa application] could not be made onshore. The Tribunal accepts that the applicant had previously made efforts to depart Australia without success. Overall the applicant and her partner presented as credible and reliable witnesses.

4. The Tribunal has also considered the applicant’s personal circumstances and is satisfied that the applicant has a genuine intention of staying temporarily in Australia. Although the applicant has a partner in Australia, her partner is on a temporary bridging visa, whilst seeking review of a refused protection application and limited weight is placed on it. The Tribunal also accepts the applicant’s evidence that she would not seek to remain unlawfully or do anything to incur a bad migration record and would depart if required by immigration authorities. The Tribunal understands that the applicant has had a dispute with her cousin in Melbourne and limited weight is placed on the applicant’s relationship with her cousin. The Tribunal is not satisfied that the applicant’s family in Malaysia constitutes a strong incentive to return, as evidenced by her continuous eight years and eight months onshore in Australia, and particularly in light of her sexual orientation which she has not disclosed to her family. The Tribunal has had regard to the short-term lease in Melbourne and lack of assets in Australia and is not satisfied that the lease would constitute a strong incentive to remain in Australia. The Tribunal has considered the evidence at hearing that the applicant and her partner would relocate to Singapore after the expiry of the applicant’s Medical Treatment visa due to her fears of returning to Malaysia due to their sexual orientation/gender identity.

5. In summary, although the applicant’s visa history raised concerns with the Tribunal Member, the Tribunal is satisfied on the basis of the applicant and her partner’s sworn evidence that the Medical Treatment visa is temporary and that she has an obligation to leave at the end of the medical treatment. The evidence from various health practitioners also demonstrates that the applicant to date has been unable to obtain medical treatment.

6. Overall, the evidence indicates, and the Tribunal finds, that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment and she satisfies cl.602.215 and the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 602 visa.

   DECISION

7. The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 602 visa:

   ·cl 602.215 of Schedule 2 to the Regulations.

   Naomi Schmitz
   Member