Mohd Zawawi (Migration)

[2022] AATA 4526

Mohd Zawawi (Migration) [2022] AATA 4526 (9 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Siti Norhaziwa Binti Mohd Zawawi

CASE NUMBER:  2111096

HOME AFFAIRS REFERENCE(S):          BCC2021/1424424

MEMBER:David Crawshay

DATE:9 November 2022

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 09 November 2022 at 4:19pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – unfit to depart Australia – no current evidence of medical treatment – motivated to remain in Australia by other reasons – 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 28 July 2021 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 16 July 2021. 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 delegate refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which her visa was granted, and she did not meet the exception of being unfit to depart Australia. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

4. The applicant appeared before the Tribunal on 9 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Does the applicant satisfy the requirements of cl.602.215?

7. Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. In this case, the purpose for which the visa is granted is for the provision of medical treatment and specifically the provision of medication and psychotherapy for depression according to a Form 1507 dated 16 July 2021. 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 visas, 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).

   Is the applicant unfit to depart Australia?

8. Clause 602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the 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.

9. The applicant’s age, according to her date of birth on her passport, is 31, and the Tribunal accepts that she is 31 years of age. Given that one of the cumulative requirements under cl.602.212(6) is that the applicant has turned 50, cl.602.212(6) is not met. Because cl.602.212(6) is not met, the applicant does not meet the exception in cl.602.215(2) and must meet cl.602.215(1).

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

10. The Tribunal has considered whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa. Since September 2018, she has had a “no work” condition imposed on her bridging visas, the last of which was granted on 4 February 2022. At hearing, the Tribunal heard from the applicant that she had previously worked at Tatura but ceased working in August or September 2018. It considers that there is no information to demonstrate that the applicant has been working in contravention of her “no work” condition. Moreover, there is no evidence that she has not substantially complied with the other conditions of her bridging visas. This aspect is given weight.

11. The Tribunal has considered if the applicant intends to comply with the conditions to which a Subclass 602 visa would be subject. As there is no evidence to show that she would satisfy cl.602.212(7), the Tribunal considers that conditions 8101 (“no work”) and 8201 (“no study for more than three months”) would be imposed on any Subclass 602 visa granted to her. While it considers that discretionary condition 8503 (“no further stay”) would likely be imposed given her migration record, for present purposes it accepts that it would not be imposed.

12. Having considered the circumstances of the applicant – namely, that she lives with her husband who is currently working – it accepts that she intends to comply with the “no work” condition. Furthermore, there is no evidence to show that she would not comply with condition 8201 in relation to no study or training for more than three months. This aspect is given weight.

13. The Tribunal has considered any other relevant matter. It has considered the applicant’s previous migration history, and namely that she had stayed in Australia beyond her first temporary visa, and had applied for two other substantive visas before applying for the present visa. [The applicant indicated] that she owed debts to friends, had a bank loan and a car loan. Upon further questioning, she revealed that one of her friends was pursuing her for money owed.

14. Significantly, and in response to the Tribunal’s question, the applicant stated that she [remained] in Australia based on owing money to this person. Moreover, when asked whether she feared being arrested (since she stated that this friend had gone to the k), she answered that she did.

15. To be clear, the Tribunal [understands] that she still feared returning to Malaysia [and] feared police action. The Tribunal accepts the applicant’s testimony on this point and accepts that she [does not wish to go] back to Malaysia for the reasons given.

16. The Tribunal has considered that the applicant has a husband with whom she lives in Shepparton. At hearing, it heard from her that her husband [had another visa application]. When she was asked how this process was going, she answered that she did not know. She later answered that she thought he was asked to attend the Tribunal but that the hearing was postponed.

17. The Tribunal has considered the applicant’s claimed medical condition. At hearing, she told it that she was prone to anxiety attacks which she said began at the end of 2019 when she saw a doctor. When asked if there was a trigger to this anxiety, she said that she sometimes gets traumatised or scared if something happens to her. When pressed, she said that it was when she got telephone calls from her creditor. She said that he did not contact her anymore because she had changed telephone numbers but still asked her family for money.

18. When asked what treatment she had been receiving for her conditions, she said that she went to see a specialist in Melbourne in 2019 who gave her medication and counselling. She said that she did not go back because she did not have access to Medicare. When asked if she saw anyone else, she said that she saw someone in Melbourne last year. When asked if she saw anyone in Shepparton about her conditions, she replied that she did not because she was moving a lot – staying in Melbourne for a while and then Shepparton for a while.

19. At this stage, it was put to the applicant that she would have seen a psychologist this year if she were trying to overcome or manage her conditions. The applicant said that it was because it was too costly. When it challenged her about whether this explained why she had not seen a psychologist this year, she said that she saw someone from an NGO a few weeks ago, but they just gave her some motivation.

20. The Tribunal asked the applicant if she had been taking any medication and she replied that she had medication for sleeping because she did not sleep well. When asked the name of this medication, she said that she got them from the chemist and they were sleeping pills.

21. The Tribunal asked the applicant how long she required for her medical treatment and she answered that she was not sure but possibly needed two years. When asked why she needed this long, she replied that she wanted to truly calm herself down. When pressed, she said that she wanted the problem to be completely resolved.

22. At the end of the hearing, the Tribunal put its concerns to the applicant. It firstly put to her that there was minimal evidence of her condition and she had had no treatment in the last year. While it noted her comments about having a lack of funds, it put to her that she would have prioritised her treatment over other things. The applicant did not offer any response.

23. The Tribunal put another of its concerns to the applicant, which was that even if she was suffering from the conditions claimed, there are other compelling reasons for her to stay in Australia. The first of these concerns was that she had a husband who may have a chance to be granted a permanent visa (or at least the wheels were in motion and it was not clear when his application would be resolved). In response, the applicant offered no comment. The second of these concerns was that she still feared returning to Malaysia, to which the applicant stated that this was correct.

24. Having considered the information in front of it, the Tribunal makes the following findings. Based on a lack of documentary evidence since the delegate’s decision, it finds that the applicant has made minimal efforts to address her claimed conditions of depression and anxiety attacks. There is no evidence that she has engaged with any medical practitioner this year and by her own evidence she has not been prescribed any medication, instead using sleeping pills that appear without more evidence to have been provided over-the-counter given that they have been given by a pharmacist. Although it accepts that the applicant may not have a large amount of funds to expend on treatment, it finds that her inability to engage in any treatment this year reflects the low priority she places on it. Lastly, it finds her proposal of two years’ medical treatment to be wholly disproportionate to her claimed conditions, especially when it is considered that she has provided minimal evidence to substantiate these conditions.

25. Having made these findings, the Tribunal is not satisfied that the applicant has been suffering from the conditions claimed by her. Even if it is wrong about this, it is not satisfied that her conditions warrant substantial medical treatment that could not be rendered in Malaysia. It gives this aspect weight of an adverse nature as it suggests a motive for being in Australia other than to receive medical treatment.

26. In this regard, the Tribunal finds that the applicant has a husband in Australia who has submitted an application for a permanent visa which is currently being considered, most likely at the Tribunal stage. It accepts that she would want to remain in Australia with him until at least his visa process is finished (or even after that if a permanent visa is granted to him). It gives this aspect substantial adverse weight as it considers it to be a great inducement for the applicant to remain here.

27. Lastly, the Tribunal finds that the applicant genuinely fears returning to Malaysia. Based on her clear testimony at hearing, it finds that this fear stems from a debt owed to another person over there and the possibility of police action in respect of this debt. The Tribunal considers this to be a large disincentive for her to return to Malaysia, and it is given adverse weight for this reason.

    CONCLUSION

28. The Tribunal has considered and weighed the evidence in front of it when assessing whether the applicant has the requisite intention according to cl.602.215(1). It acknowledges that the applicant claims to require treatment for medical conditions and accepts and gives weight to evidence that the applicant has complied with the conditions of her previous bridging visas and intends to comply with the conditions placed on the visa the subject of the review. However, it gives more weight to other evidence that it considers is indicative of the applicant not having a genuine intention to stay temporarily, such as the presence of her husband who has a permanent visa application on-foot and her clear fear of returning to Malaysia. It finds that this evidence demonstrates the applicant is motivated to remain in Australia by reasons other than the reason given by her for applying for the visa, which was to receive medical treatment for her conditions.

29. The applicant therefore does not satisfy cl.602.215(1).

30. Because cl.602.215(1) is not met and because the exception in cl.602.215(2) does not apply, cl.602.215 is not met.

31. 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

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

    David Crawshay
    Member