Blair Athol Medical Clinic Service Trust and Minister for Health and Aged Care

The Administrative Appeals Tribunal considered applications by overseas-trained doctors seeking exemptions from section 19AB(1) of the *Health Insurance Act 1973* (Cth) to access the Medicare Benefits Schedule. The applicants, including Dr. Minoo Rafiee and Dr. Wijayaratnam Kandasamy, had their previous applications for such exemptions refused by the Minister for Health and Aged Care. The core of the dispute revolved around whether the medical services provided by these doctors were located in a Distribution Priority Area (DPA) or a District of Workforce Shortage (DWS), and how various considerations under the relevant guidelines should be weighed in determining eligibility for an exemption.

The Tribunal was required to determine the correct approach to weighing the considerations outlined in section 6 of the Guidelines when assessing applications for general exemptions. Specifically, it needed to clarify whether there was a hierarchy between the primary consideration of a service location being in a DPA (under s 6(2)) and other considerations listed in s 6(3), and whether a "special circumstance" threshold applied to the latter. The Tribunal also had to decide whether to affirm or set aside the delegate's decisions to refuse exemptions for each applicant.

The Tribunal reasoned that the approach to weighing considerations under section 6 of the Guidelines mirrored the balancing of "Primary" and "Other" Considerations in migration decisions, as established in cases like *HSKJ v Minister for Immigration and Border Protection* [2018] FCA 1013. It held that there is no inherent hierarchy between these considerations; while primary considerations are generally given more weight, other considerations can outweigh them in certain circumstances. The Tribunal rejected the submission that a "special circumstance" threshold was required to enliven the considerations in s 6(3), stating that the decision-maker must simply determine if any facts or matters fall within those subsections and then decide what weight, if any, to give them.

Ultimately, the Tribunal set aside the delegate's decisions in the matters of Dr. Rafiee and Dr. Kandasamy, granting them general exemptions to provide medical services at the Blair Athol Medical Clinic until the conclusion of their respective 10-year moratorium periods. However, in the matter of Dr. Harsha Sanjeeva Wickramanayake, the Tribunal affirmed the decision under review.