Mohd Nor v Minister for Immigration and Citizenship [2025] FedCFamC2G 1847

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. In this application, the applicant, Mr Nor, seeks judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 22 October 2021. On that day, the Tribunal affirmed a delegate's refusal to grant Mr Nor a medical treatment visa.
2. Mr Nor had lodged the application for a medical treatment visa on 28 February 2020. In that application he sought to remain in Australia for medical treatment for "anxiety/depression" until 1 March 2021.
3. It is the refusal of that visa which results in these proceedings today.

1. Mr Nor is a citizen of Malaysia who arrived in Australia on 22 October 2015.
2. In December 2015, Mr Nor lodged an application for a protection visa. The protection visa was refused by a delegate of the Minister, and that refusal was affirmed by the Tribunal on 27 June 2017.
3. After the refusal of the protection visa application, Mr Nor remained in Australia as an unlawful non-citizen for about two and a half years. It was only after that period that Mr Nor made his application for a medical treatment visa.
4. At the time of his visa application in February 2020, the applicant stated that he sought the visa so he could obtain medical treatment from a psychologist for anxiety and depression. The applicant provided a Form 1507 (evidence of intended medical treatment) which disclosed that he had been referred by a general practitioner to a psychologist.
5. At the relevant time, Part 602 of Schedule 2 Migration Regulations 1994 (Cth) (the Regulations) set out the requirements for the grant of a Subclass 602 (Medical Treatment) visa. Regulation 602.212(1) prescribes that an applicant applying for a medical treatment visa must satisfy at least one of the requirements as listed in regs 602.212(2)-(8).
6. Relevantly, reg 602.212(2) states:

Medical treatment

(2) All of the following requirements are met:

(a) the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;

(b) arrangements have been concluded to carry out the treatment;

(c) if the treatment is an organ transplant:

(i) the donor of the relevant organ is accompanying the applicant to Australia; or

(ii) all requisite arrangements to effect the donation of the organ have been concluded in Australia;

(d) the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

(e) arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant's stay in Australia, including the expenses of any person accompanying the applicant;

(f) either:

(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

(ii) evidence is produced that the relevant government authority has approved the payment of those costs.

1. Another potentially relevant set of requirements is set out at reg 602.212(6):

Unfit to depart

(6) All of the following requirements are met:

(a) the applicant is in Australia;

(b) the applicant has turned 50;

(c) the applicant has applied for a permanent visa while in Australia;

(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

(e) the applicant has been refused the visa;

(f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth

1. Regulation 602.215(1) set out a further requirement for applicants applying for a medical treatment visa. Namely, that:

[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.

1. In substance, in order to qualify for the visa the applicant was required to produce evidence of the medical treatment he was seeking and evidence of the arrangements made to carry out that treatment. Importantly, the applicant was also required to satisfy the Minister that his intention to remain in Australia temporarily for the purposes of the visa was genuine.
2. On 30 March 2020 the delegate found, first, that the applicant had never acted upon the general practitioner's referral to a psychologist, and secondly, that Mr Nor was using the medical treatment visa application as a pathway to remain in Australia. The decision record contains the following relevant passages:

On 28 February 2020, the applicant lodged a Medical treatment visa. It is stated that, the applicant would like to remain in Australia until 01 March 2021, to seek Medical treatment for "Anxiety/Depression". A Form 1507 has been provided in support of the application and confirms that the applicant is seeking medical treatment in Australia.

[...]

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. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.

[...]

I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.

1. In assessing the applicant's "genuine intention" to stay in Australia temporarily - per reg 602.212(1) - the delegate had regard to the fact that during the applicant's time in Australia, the applicant had been an unlawful non-citizen for 2 years, 6 months and 21 days.

1. Mr Nor sought a review of the delegate's decision to the Administrative Appeals Tribunal. The Tribunal asked Mr Nor to provide certain information and evidence to support his application. However, Mr Nor did not provide that information, and as a result he was denied the opportunity to participate in a hearing. Nonetheless, the Tribunal did afford Mr Nor the opportunity to participate in an interview.
2. After considering the application, the Tribunal, like the delegate, refused the visa. Like the delegate, the Tribunal was not satisfied that the applicant met the requirements for the visa because there was no evidence that he sought to obtain medical treatment, nor was there evidence that Mr Nor had made any arrangements for treatment to be carried out. The Tribunal was also not satisfied that Mr Nor intended to remain in Australia on a temporary basis.

1. Mr Nor has exercised his right to seek judicial review in this Court. In his application, Mr Nor identified two grounds of review.
2. Firstly, the applicant says the Tribunal failed to properly consider his particular circumstances in Australia and Malaysia. By his second ground, the applicant states that he would provide further particulars of any other jurisdictional error.
3. The application for judicial review was heard by me today. Mr Nor appeared for himself and was assisted by an interpreter, Ms Sulaiman. The Minister was represented by Mr Rossi. I explained the process of the hearing to the applicant and invited him to ask questions if he did not understand my explanation.
4. Prior to the hearing, orders were made for parties to file any affidavit on which they wanted to rely, and a written outline of submissions. The Minister filed a court book and a written outline, and the applicant confirmed that he had copies of those with him in Court today. The applicant did not file any written outline of submissions.

1. When Mr Nor was invited to address the Court, he made the following submissions:

(a) that he did not blame the Tribunal and that there had been a misunderstanding;

(b) that he is now on a bridging visa and under the Medicare system;

(c) that the application for a medical treatment visa came about at the suggestion of a friend, and that he was told that he should apply for the visa because at the time he was very stressed. He said that he followed that advice because he thought that he would be able to get a visa and then work. Mr Nor also said that at the time he was confused because he had no job and no income, and because he is an LGBTQ person; and

(d) Mr Nor said that he did not appreciate that he had to get medical treatment.

1. In response to those oral submissions, the Minister said that Mr Nor had not identified any error in the Tribunal's decision. The Minister otherwise relied upon his written submissions. I have read and carefully considered those submissions in coming to my decision. The submissions are compelling and I accept them.

1. For the following reasons, the application must be dismissed:

(1) The applicant has failed to take me to any part of the Tribunal's decision which discloses error. In my view, the Administrative Appeals Tribunal performed the task that it was required to undertake, namely a review of the delegate's decision. The Tribunal's finding that the applicant did not meet the criteria under regulation 602.212 was undoubtedly correct. There was no evidence which could have persuaded any rational decision-maker to make a different finding.

(2) The second part of the Tribunal's decision was its finding that the applicant was not a genuine temporary entrant for the purposes of clause 602.215. In coming to that conclusion, the Tribunal considered the applicant's claim for the medical treatment visa and considered his particular circumstances. In reaching that finding, the Tribunal considered the applicant's migration history and his evidence that he was not seeking medical treatment and had no intention to return to Malaysia.

(3) Again, it was clear from the applicant's oral submissions today that his real wish is to remain in Australia and to be able to work, and that he pursued the medical treatment visa on the recommendation of friends. That, unfortunately, was not a good recommendation.

1. The applicant should pay the Minister's costs of the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.