2216347 (Migration)

The Administrative Appeals Tribunal considered an application for a Medical Treatment (Visitor) (Class UB) visa, Subclass 602. The applicant sought to remain in Australia temporarily for psychological counselling following an incident in August 2021. The central dispute revolved around whether the applicant genuinely intended to stay temporarily in Australia for the purpose of the visa, or if this requirement was inapplicable due to the applicant's alleged medical unfitness to depart.

The Tribunal was required to determine the correct approach to assessing the applicant's eligibility for the visa, specifically in light of conflicting Federal Circuit Court decisions regarding the order of consideration of relevant clauses. The Tribunal also needed to assess whether the applicant met the medical treatment requirements under clause 602.212, which necessitates, among other things, concluded arrangements for treatment, absence of public health threats, and secured payment for all associated costs. Furthermore, the Tribunal had to consider whether the applicant's intention to remain temporarily was genuine, as required by clause 602.215.

The Tribunal reasoned that while the Federal Circuit Court in *El Mir v MICMSMA* suggested a sequential consideration of subclauses within clause 602.212, a more recent decision in *DET22 v Minister for Immigration, Citizenship and Multicultural Affairs* clarified that this is not a universal requirement. The Tribunal found that the applicant had provided evidence supporting the medical treatment purpose under clause 602.212, including a Form 1507 and a booked departure flight. However, the Tribunal noted that the applicant had not yet provided all requested evidence regarding payment arrangements and the genuineness of their temporary stay.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets the criteria under clauses 602.212 and 602.215 of Schedule 2 to the Regulations.