Raja Redzwa (Migration)

[2022] AATA 4686

Raja Redzwa (Migration) [2022] AATA 4686 (28 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Raja Mastura Raja Redzwa

CASE NUMBER:  2117294

HOME AFFAIRS REFERENCE(S):          BCC2021/2028614

MEMBER:David Crawshay

DATE:28 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 28 November 2022 at 3:37pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay – injury from an accident – medically unfit to depart Australia – permanent medical condition – availability of treatment in Malaysia – partner remaining in Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 602.212, 602.215; Schedule 8, Condition 8512

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 10 November 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 25 October 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). 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.

3. The applicant appeared before the Tribunal on 11 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Mazen Albatat, who is the applicant's doctor. The Tribunal attempted to ring another doctor, Dr Ali Kienmehr, but was unable to speak to him.

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. 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?

6. 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 in relation to a “hand injury with neurological symptoms” according to a Form 1507 dated 5 July 2021. At hearing, the Tribunal heard that this condition was sustained in an industrial accident. 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?

7. 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.

8. At hearing, the Tribunal sought to ascertain if the applicant had been deemed medical unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a MOC: cl.602.212(6)(f). The applicant told it that she went to see the doctor when she was injured and had an assessment by an independent doctor for Workcover purposes. She did not give any evidence to demonstrate that she had been seen by a MOC and in the absence of any supporting information, the Tribunal is not satisfied that she satisfies cl.602.212(6)(f). Therefore, cl.602.212(6) is not met and the applicant does not meet the exception in cl.602.215(2). She must meet cl.602.215(1).

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

9. The Tribunal has considered whether the applicant has complied substantially with the conditions of her last held substantive visa or any subsequent bridging visa. Since the cessation of her initial Electronic Travel Authority visa (UD-601) in April 2016, she has been on a series of bridging visas – firstly, two Bridging A visas of which the latter expired in July 2021; and then two Bridging E visas. The two Bridging A visas had no conditions attached. The first of the two Bridging E visas, however, had condition 8512 attached among other things. Condition 8512 is a condition imposed to ensure an applicant’s departure by a certain date. Although the applicant in this matter did not subsequently depart Australia, the Tribunal notes that the bridging visa carrying this condition was superseded by a later bridging visa that did not include this condition, and that this later bridging visa commenced before the cessation of the bridging visa it replaced. It is arguable that this condition ceased upon the new visa. It finds that the applicant has complied with this 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.

10. 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.

11. Having considered the circumstances of the applicant – namely, that she lives with her partner who is currently working – the Tribunal 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. This aspect is given weight.

12. The Tribunal has considered any other relevant matter. It has firstly considered the nature of the medical conditions and the applicant’s claimed treatment for them. It heard from her that she had undergone a CT scan and an MRI for diagnosis, and nerve conduction and steroid injections. She said that she had been on Lyrica and Mobic which were increased. She said that she had only been to the physiotherapist twice because her pain had been increasing and she had to stop. She said that she went to see her specialist who increased her medication. She said that he has been trying to monitor her pain. She said that he has said that she is unable to work, and that the injury and pain will be permanent. She said that she is in constant pain and her hands are turning white. She said that she had carpal tunnel syndrome. She said that her Workcover payments began in November 2021, which was after her injury and after she had paid for her scans on her own.

13. The applicant told the Tribunal that she was hoping to stay and get more treatment to get better before she leaves, because she did not know if she could get this treatment in Malaysia. When asked what she based this belief on, she said that she was not under insurance there. The Tribunal asked the applicant what she based her belief that she would not be able to afford the treatment. She said that her insurer is paying for her treatment at the moment and she would not be able to get this treatment back home. The Tribunal asked her what evidence this belief was based on, and she said that she would not be able to afford this treatment as she would not have insurance in Malaysia.

14. At this stage, the Tribunal put to the applicant the following information from a DFAT Country Information Report:

    Malaysia has a well-established universal health care system, accessed by around 78 per cent of the population, and modelled on the United Kingdom’s system. Malaysia’s two-tiered health system consists of nation-wide public health care centres and hospitals administered by the Ministry of Health, and a growing private health sector, which predominantly offers services in urban areas.[1]

    [1] Department of Foreign Affairs and Trade, “Country Information Report: Malaysia” (29 June 2021), 2.22, >

    The Tribunal challenged the applicant to provide information showing that she would not be able to afford the treatment in Malaysia in light of the above information. The applicant said that she would need to go to a private hospital if she were to receive the treatment she gets here. She said that the private hospitals are very costly, she does not have insurance and will not be able to afford the insurance given her age. She said that she cannot afford the treatment. She said that she wants to get better and for the doctor to certify her as better.

15. At this point, the Tribunal suggested to the applicant that, based on the information in front of it, she had not been making improvements and things had not been getting better. It cited the following passage from a letter from Dr Ali Kianmehr dated 12 August 2022 – “I think her condition will be permanent and will not change for foreseeable future” – and asked her if she had reached a point where she needed to manage her condition through medication. She said that she was in the process of pain management and therapy. The Tribunal asked how much of the pain management had been done already. The applicant said that she would leave this consideration to her doctors.

16. Later in the hearing, the Tribunal interviewed Dr Mazen Albatat, who is one of the applicant’s doctors,. Dr Albatat told it that the applicant has had nearly all of her investigations done. He said that she saw Dr Kianmehr last month and that she needs more follow-up from him and from her physiotherapist. When it asked him how long it would be before the applicant could return home, he replied that it was very hard to say. When it asked him if the treatment she was receiving was available in Malaysia, he said that it was hard for him to say. He said that he did not know if she could have the same thing over there.

17. Towards the end of the hearing, the Tribunal was made aware of a letter from Dr Kianmehr dated 26 October 2022 that did not appear on its file. It asked Dr Albatat to read the letter into evidence, which he did by reading out the following passages:

    I reviewed Raja today through telehealth. She told me that she can be quite drowsy in the morning where she uses Lyrica 75mg. I explained that she can’t take 75mg at night and 25mg in the morning to manage the pain. She also wanted to highlight that she suffered from chronic pain, as I explained in my previous letter. I believe her position is stable and will not change for foreseeable future. I think she went through all possible treatment that could potentially help her for this matter, but it has not improved her functionally to the extent to be able to attend to work. I believe she has no capacity for work and this condition will not change for foreseeable future.

18. The Tribunal suggested to the applicant that while this letter was in similar terms to Dr Kianmehr’s earlier letter [of August 2022], it showed that the treatment process had run its course. The applicant replied by saying that the doctor had told her that she can undertake pain management and can still undergo physiotherapy to get her strength back. Dr Albatat confirmed this. The Tribunal asked her when she last saw the physiotherapist, and she replied that it was a couple of months ago, but she needed to stop because the pain was unbearable. The physiotherapist told her not to come back until she was much better.

19. The Tribunal has considered the information in front of it, including the testimony of the applicant and of Dr Albatat at hearing, as well as medical evidence from Dr Kianmehr and Dr Albatat. Based on this information, it accepts that the applicant has received treatment for an injury that she sustained in an industrial accident. It finds that this treatment has advanced from diagnosis early on through to treatment. It finds that she is now at a stage where she is receiving advice on management. It accepts based on the applicant’s testimony at hearing that physiotherapy is stalled indefinitely due to a lack of improvement in her pain.

20. While the Tribunal accepts that the applicant has been undertaking treatment for her conditions, it is not satisfied based on the information in front of it and the findings it has made above that she is unable to receive this treatment in Malaysia. Although it notes her comments in relation to her capacity to afford such treatment given the healthcare system in Malaysia, in the absence of information to the contrary it is not satisfied that this is the case.

21. The Tribunal has considered the nature of the applicant’s medical conditions and the treatment required, but accords little weight to this aspect as being an indicator of a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

22. The Tribunal has considered the applicant’s personal situation. At hearing, it heard from her that she has a partner of 11 years who she met in Malaysia and with whom she travelled to Australia in 2016. She agreed that the relationship was long-term and committed. Elsewhere, she said that her partner works and was supporting her financially for “little things”. The applicant said that her partner was on a bridging visa [and] was applying for a carer visa as carer for [a relative] but did not know at what stage the visa was. She told it that she did not know if she was attached to that application as a secondary applicant.

23. [Details deleted.]

24. At this point, the Tribunal put to the applicant that being in a long-term relationship with her partner who was perhaps on [the] way to being granted a permanent visa was keeping her in Australia, [details deleted]. The applicant told it that whatever decision the Department had made on [her other] visa is “fine”, but all she needed now is her medical visa in order to receive her treatment to be fit and how she used to be before getting injured in Australia. While noting the applicant’s evidence, the Tribunal asked the applicant how likely she was to return to Malaysia if there were things stopping her from returning there and things keeping her in Australia, such as her community of friends in Shepparton. The applicant said that she only had friends to help her do her housework and to bathe and feed her. She said that she just wants to get better. The Tribunal asked the applicant what incentive she had to return to Malaysia, and she replied that she cannot stay here and does not want to be illegal. She said that if she wanted to be illegal, she would not have gone through these processes.

25. The Tribunal has considered the information in front of it relating to the applicant’s personal situation. It accepts that she is in a long-term, committed relationship with [a partner] that pre-dates her arrival into Australia. It accepts that her partner is in Australia and is currently applying for a permanent visa, being a carer visa. In the absence of contrary information, it accepts that this application is ongoing. Finally, the Tribunal accepts that the applicant’s partner provides her financial support.

26. In relation to the applicant’s [profile], the Tribunal accepts based on her testimony at hearing that she previously applied for [another visa]. While it does not wish to relitigate [this previous] visa application – noting that it ended up being unsuccessful after merits and judicial review – it nonetheless considers that [some of that evidence] will be relevant to the overall assessment. It notes in this regard that the applicant gave differing testimony – firstly stating very clearly that she would “of course” still [prefer to remain in Australia] but then saying that she did not fear returning to Malaysia. Such statements are not easily reconciled and in this case the Tribunal finds that the second of the two statements is not supported by her surrounding testimony. Indeed, her comments [about the previous application indicate her preference of not] returning to Malaysia.

27. The Tribunal views the applicant’s relationship with an Australian-based [partner] as a significant inducement for her to remain in Australia. [Details deleted.] These factors are accorded substantial adverse weight.

    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 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 in Australia of her long-term partner who supports her financially and whom she states has applied for a permanent visa, and her [own specified profile]. It finds that this evidence outweighs other evidence, such as the applicant’s desire to ensure she does not remain in Australia as an illegal non-citizen. This evidence demonstrates that the applicant is motivated to remain in Australia for 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). 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.

30. 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

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

    David Crawshay
    Member