Ramdasa (Migration)

[2022] AATA 4584

Ramdasa (Migration) [2022] AATA 4584 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Parameswari Ramdasa

CASE NUMBER:  2107971

HOME AFFAIRS REFERENCE(S):          BCC2021/1112460

MEMBER:Tania Flood

DATE:21 November 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 21 November 2022 at 3:00pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for medical treatment – previous application for a permanent visa – period of unlawful residence – applicant accessing painkiller medication not 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 2 June 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 20 May 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 on the basis that the applicant did not have an intention to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 18 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.

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

   BACKGROUND

6. According to Department records the applicant arrived in Australia on 12 October 2016 on a UD 601 Electronic Travel Authority visa and departed on 8 November 2016. On 15 February 2018 the applicant applied for, and was granted, another UD 601 visa and returned onshore two days later, on 17 February 2018. A TU 500 Student visa application was made by the applicant on 16 May 2018 and withdrawn on 28 August 2018. The applicant lodged a [permanent] visa application on 26 September 2018, and this was deemed invalid by the delegate on 1 October 2018. On 30 December 2018 the applicant lodged a subsequent [permanent] visa application, which was refused on 13 April 2019. This decision was appealed to the Federal Court [in] October 2019 which ruled in the Minister’s favour [in] December 2020. The applicant lodged another [permanent] visa application on 18 February 2021, and this was deemed invalid by the delegate on 19 February 2021. On 20 May 2021 she applied for the UB 602 Medical Treatment (Visitor) visa which is the subject of this review. The applicant has remained onshore following her return on 17 February 2018 and has not held a substantive visa since 2018. The applicant unlawfully resided onshore for periods in 2018 and 2019.

   APPLICATION

7. In the application for the Medical Treatment visa the applicant indicates she is a Malaysian citizen seeking medical care in Australia from 20 May 2021 to 20 November 2021.  In an attached Form 1507 it is indicated she requires treatment, including an MRI, for headaches.   In support of her case she attaches an imaging request dated 17 May 2021.

8. On 24 May 2021 the Department wrote to the applicant advising her that her migration history along with the amount of time she has already spent in Australia gives rise to concern about her intention to be a genuine temporary entrant and to her incentive to return to her home country.  She was invited to provide comment and supply further information in respect of this.  There is no response to this request on the Department’s file.

   INFORMATION PROVIDED TO THE TRIBUNAL

9. In response to a request to provide information to the Tribunal in respect of medical treatment she has or is undergoing and her intentions of returning to her country once the treatment is concluded the applicant emailed the Tribunal on 22 October 2022 copies of prescriptions for Naproxen/Naprosyn, an anti-inflammatory drug used to treat pain and other ailments and a tax invoice for an ultrasound of the pelvis dated 18 August 2022.

   Tribunal hearing

10. When the applicant appeared before the Tribunal she provided the following testimony:

11. She was born in Malaysia.  She was previously married but is since separated from her husband in Malaysia.  She formed a new relationship in Australia but it has broken down due to domestic violence.  She has a court case pending in respect of the violence.   She has two children in Malaysia who are living with her mother. 

12. Her father is deceased and she has 5 brothers and 6 sisters.  One brother is in Australia as is her brother-in-law.  She maintains contact with her family in Malaysia.

13. She came to Australia on a student visa but she could not afford the fees and later applied for a [permanent] visa.  She applied for [this visa] because she had a debt problem in Malaysia and feared for her safety.  The debt has not been paid off and she still fears returning to Malaysia in connection with this.

14. She sought a review of [that] visa refusal in the court and was unsuccessful.  She was unaware she had become unlawful for a period of time in Australia because she lost access to her email and her brother only informed her after the fact that her visa was expired.

15. She applied for a Medical Treatment visa because she was too sick to travel home at the time.  She suffers from headaches and stomach pain.  She is prescribed painkillers by her doctor.  She has also undergone an ultrasound and now her doctor has recommended she has blood tests.  However, she cannot afford the treatment.

16. As to when she intends to return to Malaysia she said that when the blood test has been done the doctor will advise her further.  She said she also has a pending court case to attend to before she can return home.

17. When discussing her migration history she stated that initially she had wanted to remain in Australia but now she does not have work rights and she is under a lot of stress.  She said that while she cannot say [what will happen] if she returns to Malaysia she said she is finding it very difficult to live here as she has been refused work rights many times.  She said she is relying on the support of her brother and her brother-in-law.

18. When asked to outline any incentives she has to return to Malaysia when her treatment is concluded she stated that there is no incentive for her to go back there.  She said there is nothing for her there.  She later said she would return home because it is too difficult to get a visa to remain in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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 remain temporarily in Australia for the purpose for which the visa is granted.

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

20. 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.

21. The applicant advised the Tribunal that she was born on 24 August 1986.  Therefore, she is 36 years of age.   Given this, the requirements in cl 602.212(6) are not met and accordingly, the requirement in cl 602.215 does apply.

22. In the present case, the visa applicant seeks the visa for the purposes of treating head and stomach pain. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

23. Despite indicating a need for medical treatment for a head and stomach complaint the available evidence indicates the only treatment the applicant is currently accessing is painkiller medication.  While she claims that her doctor has recommended blood tests there is no medical evidence before the Tribunal to support this and nor has the applicant claimed to have made any arrangements to have the tests as she claims she cannot afford to do so.

24. Notwithstanding the lack of medical evidence and her apparent inability to pay for medical treatment, the Tribunal is concerned, based on her migration history and her oral testimony during the hearing, that the applicant’s intentions in applying for a Medical Treatment visa are not genuine.  As discussed with her during the hearing, she appears highly motivated to remain in Australia given she has maintained residency here since 17 February 2018 and attempted to secure a [permanent] visa.  Instead of departing Australia she then unsuccessfully appealed that decision to the court for review and then attempted to make another application for a [permanent] visa.  Significantly, she claimed during the hearing that she still fears returning to [Malaysia]. 

25. Despite her migration history suggesting otherwise, the applicant claimed during the hearing that she would return to Malaysia when she solves her health problems regardless of her [circumstances].  The Tribunal has considered her testimony but is not satisfied she will.  Relevantly, she informed the Tribunal that she has no incentive to return to Malaysia and the Tribunal has placed much weight on her advice.  

26. The Tribunal acknowledges the applicant has two children in Malaysia but her actions indicate she is willing to leave them in the care of her mother for an indefinite period.  The Tribunal also acknowledges the applicant’s claimed history of domestic violence in Australia and pending court proceedings.  However, the Tribunal is not satisfied that this circumstance is the primary reason why the applicant has failed to, or will fail to, depart Australia in future. 

27. Additionally, the Tribunal notes and has placed weight on the fact that the applicant requested to stay in Australia for medical treatment until 20 November 2021, a date which has long expired.  Based on the available evidence she made little effort to resolve her medical complaint by 20 November 2021 and/or in the year since then.

28. Having considered the available evidence the Tribunal has formed the view that the evidence set out above, including the length of time the applicant has been in Australia and the efforts she has made to remain here permanently indicate she is highly motivated to remain in Australia long term.  These factors, together with past non-compliance with visa validity and the lack of incentives to return to Malaysia, cause the Tribunal to believe that the applicant does not genuinely intend to remain in Australia temporarily for medical treatment.  Rather, the Tribunal considers the applicant is attempting to use the Medical Treatment visa pathway as a means of prolonging her stay in Australia. 

29. Having regard to the considerations in cl. 602.215(1) (a) to (c) and the matters set out above, the Tribunal is not satisfied that the applicant intends to stay temporarily in Australia for the purpose for which the visa is granted.

30. Given the above findings, the requirements in cl 602.215 are 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.

    Tania Flood
    Member