Azmy (Migration)

[2021] AATA 4736

Azmy (Migration) [2021] AATA 4736 (19 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Turmizi Bin Azmy

CASE NUMBER:  1932859

HOME AFFAIRS REFERENCE(S):          BCC2019/5348459

MEMBER:Joseph Lindsay

DATE:19 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 19 November 2021 at 5:01pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – substantial compliance with visa conditions – gravely ill or receiving intensive or critical care – treatment available in Malaysia – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.211, 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 4 November 2019 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 24 October 2019. 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. The applicant appeared before the Tribunal on 6 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Is the visit for medical or related purposes?

6. Clause 602.211 requires that the applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes. Clause 602.215 requires:

   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.

   Clause 602.215 in Schedule 2 to the Migration Regulations is a criterion that must be satisfied, that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

7. In the hearing, the Tribunal noted that the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal spoke about the information in the delegate’s decision.

8. The delegate’s decision stated:

   On 06 October 2015, the applicant arrived in Australia as the holder of a Visitor (subclass 601) visa and has not departed. 04 January 2016, the applicant lodged a [permanent visa application]. This application was refused on 24 February 2016. The applicant sought a review of the decision through the Administrative Appeal Tribunal (AAT), which was affirmed on 08 November 2016. [In] February 2019, the applicant lodged an appeal to the Federal Court, which resulted in Minister Win [in] March 2019. [In] April 2019, the applicant lodged another appeal to the Federal Court, which is still in progress. The applicant currently holds a Bridging C (subclass 030) visa. During the applicant’s time in Australia, the applicant has been an unlawful non-citizen for 2 years, 10 months and 23 days.

9. In the hearing, the applicant told the Tribunal that the information in the delegate’s decision record is correct.

10. The Tribunal put to the applicant that in his visa application he indicated that he wanted to remain in Australia until 24 October 2020 to seek medical treatment for Anxiety and Depression. The Tribunal asked the applicant about his current medical situation. In response, the applicant indicated that he still was experiencing Anxiety and Depression, but he was not experiencing any other medical conditions.

11. When the Tribunal asked the applicant what treatment he was having for anxiety and depression, he said he had previously been prescribed antidepressant medication but that lately he had taken Panadol. The applicant explained that he only takes antidepressants when he needs to, and he still has the box of antidepressants that he has had since 2019. The applicant said he is not undertaking any counselling at this time.

12. The Tribunal put to the applicant that the Tribunal may find that the documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state they must remain in Australia for ongoing consultation, and the Tribunal may find that the information the applicant provided does not state that the treatment they are seeking is unavailable outside of Australia. When asked for a response, the applicant indicated that he needs counselling.

13. The Tribunal referred to DFAT Country Information Report for Malaysia dated 29 June 2021 that stated as follows:

    Mental Health

    2.26 The Ministry of Health’s 2018 National Health and Morbidity Survey found that just under one in three Malaysians aged 16 years and above were living with a mental health issue, but public mental health services remain limited. Due to a lack of mental health professionals, public services are generally provided by general practitioners and non-mental health specialists. Private mental health services can cost upwards of MYR300 (AUD95) per consultation. Because most private health insurance does not cover mental health services in Malaysia (as of July 2019, Malaysia AIA became the only such company to provide coverage), access can be cost prohibitive. There is also significant stigma attached to mental health issues in Malaysia. The word gila (crazy), or the term ‘gila monster’ is often used in society to describe people with a mental illness. A belief in supernatural spirituality can also compound mental health issues, and misdiagnosis of mental health issues reportedly occurs due to widespread reliance on spiritual healers and exorcisms. While spiritual healers are particularly common in Sabah and Sarawak, especially in rural areas where health services are lacking, middle class, well-educated Malaysians will also often choose spiritual remedies. It was reported that half the respondents of a survey conducted by a Malaysian thinktank experienced mental health issues, typically anxiety, during the various COVID-19 Movement Control Orders.

14. The Tribunal put to the applicant that in spite of the limitations on the availability of mental health services in Malaysia, that the Tribunal may find that the applicant would have reasonable access to mental health services, should he require those services, if he were to return to Malaysia in the foreseeable future. When asked for a response, the applicant indicated that he thought he needed to stay in Australia and that his issues in Malaysia had caused him to be depressed.

15. The Tribunal asked the applicant if there was anything else he wished to discuss. In response, the applicant indicated that he was concerned about COVID-19. However, the applicant indicated that he does not have COVID-19 and does not need treatment for COVID-19.

    Analysis and Findings

16. The Tribunal has carefully considered the information made available to the Tribunal. The Tribunal accepts that the applicant may have experienced anxiety and depression and has accessed some assistance for these issues in Australia. 

17. In its consideration of the evidence before the Tribunal, the Tribunal does not accept that the applicant is gravely ill or receiving intensive or critical care. The Tribunal does not accept that the applicant must remain in Australia for ongoing consultation. The Tribunal accepts that, despite some limitations, mental health treatment is reasonably available to the applicant should he return to Malaysia in the foreseeable future.

18. The Tribunal accepts that the applicant may have concerns about COVID-19 but he does not have COVID-19 and does not need treatment for COVID-19.

19. Given the above findings, the requirements in cl 602.211 are not met.

20. 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

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

    Joseph Lindsay
    Member