FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMD16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1247
File number: MLG 1644 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 7 August 2025 Catchwords: MIGRATION LAW – JUDICIAL REVIEW – Medical treatment visa – Where the visa applicant was seeking a medical treatment visa because he was his wife’s support person – Where the Tribunal accepted that the Applicant met the primary criterion in cl. 602.212(4)(a) of Sch. 2 of the Migration Regulations 1994 because he sought to give “emotional and other support” to his wife – Where the Applicant’s wife visa application was refused because the Tribunal was not satisfied that she intended to stay temporarily in Australia and therefore did not meet the primary criterion in cl. 602.215 – Where Tribunal held as a result the Applicant did not meet the criterion in cl. 602.212(4)(b) that the person to whom he was to provide support held medical treatment visa – Tribunal correctly refused the visa – Application dismissed. Legislation: Migration Act 1958 (Cth) ss. 91X, 360
Migration Regulations 1994 (Cth) sch. 2, cll. 602.211, 602.212, 602.215
Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
CMC16 v Minister for Immigration And Multicultural Affairs [2025] FedCFamC2G 1246
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 195 FCR 31; [2011] FCAFC 88
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCFCA 11,
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 1 July 2025 Date of hearing: 1 July 2025 Place: Melbourne Applicant: In person Solicitor for the first Respondent: Ms Petrovski of Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1644 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMD16
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
7 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Citizenship.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
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Details
- AGLC
- CMD16 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1247
- Case
- [2025] FedCFamC2G 1247
- Decision Date
CaseChat Overview and Summary
The case of CMD16 v Minister for Immigration and Multicultural Affairs involved a husband who applied for a medical treatment visa to support his wife, who was also applying for a medical treatment visa. The Tribunal had previously refused the wife’s visa application on the basis that she did not intend to stay in Australia temporarily. The husband sought judicial review of the Tribunal’s decision to refuse his visa application, arguing that he met the criteria for a medical treatment visa as he intended to provide emotional and other support to his wife. The central legal issue before the court was whether the husband met the criteria in clause 602.212(4) of the Migration Regulations 1994, specifically whether the person to whom he was to provide support held a medical treatment visa. The Tribunal had determined that the husband did not meet this criterion because his wife did not hold a medical treatment visa. The court examined the evidence presented and found that the Tribunal’s reasoning was sound. The Tribunal concluded that the husband did not meet the criteria because the wife did not intend to stay in Australia temporarily and therefore did not hold a medical treatment visa. The court agreed with the Tribunal’s assessment, finding that the husband’s evidence and migration history indicated a desire to stay in Australia permanently rather than temporarily. Consequently, the court dismissed the husband’s application for judicial review, affirming the Tribunal’s decision to refuse the medical treatment visa.
Orders
Orders of the court
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Background
Background to the litigation
The wife (CMC16) and the husband (CMD16) – separately sought judicial review, each with their own grounds – as to the Tribunal’s decisions which has led me to publish two sets of reasons.WHAT IS THE RELEVANT BACKGROUND? On 17 March 2007, the Applicant husband arrived in Australia as the holder of a student visa. The Applicant held two further Student visas and a Temporary Graduate visa. From September 2011 he held a series of Bridging visas. On 13 August 2014, the Applicant’s wife applied for a Protection (subclass 866) visa, which included the applicant in that application (as her support person). on 30 March 2015 a delegate refused to grant the visa. On 17 August 2016 the Tribunal affirmed the delegate’s decision to refuse to grant the husband the Wife (CMC16) and the husband (CMD16) protection visas. As I have noted on 18 August 2022, the High Court refused a special leave application which marked the end of road – as far as court options were concerned – for the protection visa applications for the Applicant and his wife. On 11 September 2022, less than one month later, the Applicant applied for a Medical Treatment (Class UB) (Subclass 602) visa. The Applicant applied for the visa on the basis of supporting his wife, who had also applied for a Medical Treatment visa. THE TRIBUNAL’S DECISION The Tribunal accepted - as to the wife’s application -that she had arranged medical treatment in Australia and therefore met the requirements of cl 602.212(2). The Tribunal set out the relevant part of cl. 602.212(4) criteria for the grant of a medical treatment visa to the husband as a support person (TD, [11]):Support person(4) All of the following requirements are met:(a) the applicant seeks to give emotional and other support to an applicant in relation to whom:(i) the requirements described in subclause (2) or (3) are met; or(ii) the requirements described in subclause 675.212(2) or (3) are met; or(iii) the requirements described in subclause 685.212(2) or (3) are met;(b) the person to whom the applicant is to provide support holds:(i) a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;(c) the applicant satisfies public interest criterion 4005.[Emphasis added] The tribunal accepted that the “applicant seeks to provide [his wife] with emotional and other support (including finances)” (TD, [17]). Ultimately, however, as the Tribunal was not satisfied that the Applicant’s wife genuinely intended to stay temporarily in Australia and, therefore, she did not meet a primary criterion for the grant of a visa under cl. 602.215, in consequence the Tribunal found that “the applicant is unable to meet cl 602.212(4)”, that he was providing support to a person who held the visa (TD, [28]). The Tribunal expressed its conclusion as follows (TD, [29]–[30]):29. The Tribunal is not satisfied on the evidence before it that the applicant seeks to provide support to a person who holds a Subclass 602 visa. There is no evidence that the applicant otherwise meets cl 602.212(4).30. Given the above findings, the requirements in cl 602.212(4) are not met.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 11 September 2022, less than one month later, the Applicant applied for a Medical Treatment (Class UB) (Subclass 602) visa. The Applicant applied for the visa on the basis of supporting his wife, who had also applied for a Medical Treatment visa. THE TRIBUNAL’S DECISION The Tribunal accepted - as to the wife’s application -that she had arranged medical treatment in Australia and therefore met the requirements of cl 602.212(2). The Tribunal set out the relevant part of cl. 602.212(4) criteria for the grant of a medical treatment visa to the husband as a support person (TD, [11]):Support person(4) All of the following requirements are met:(a) the applicant seeks to give emotional and other support to an applicant in relation to whom:(i) the requirements described in subclause (2) or (3) are met; or(ii) the requirements described in subclause 675.212(2) or (3) are met; or(iii) the requirements described in subclause 685.212(2) or (3) are met;(b) the person to whom the applicant is to provide support holds:(i) a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;(c) the applicant satisfies public interest criterion 4005.[Emphasis added] The tribunal accepted that the “applicant seeks to provide [his wife] with emotional and other support (including finances)” (TD, [17]). Ultimately, however, as the Tribunal was not satisfied that the Applicant’s wife genuinely intended to stay temporarily in Australia and, therefore, she did not meet a primary criterion for the grant of a visa under cl. 602.215, in consequence the Tribunal found that “the applicant is unable to meet cl 602.212(4)”, that he was providing support to a person who held the visa (TD, [28]). The Tribunal expressed its conclusion as follows (TD, [29]–[30]):29. The Tribunal is not satisfied on the evidence before it that the applicant seeks to provide support to a person who holds a Subclass 602 visa. There is no evidence that the applicant otherwise meets cl 602.212(4).30. Given the above findings, the requirements in cl 602.212(4) are not met. The Tribunal’s decision as to the fact that the Applicant was unable to meet cl. 602.214(4) was – of itself - sufficient to justify its conclusion to refuse the visa. The Tribunal “for the sake of completeness” (TD, [32]) also considered whether the Applicant generally intended to stay temporarily in Australia for the purposes of cl. 602.215. The Tribunal concluded as follows (TD, [59]):The Tribunal is not satisfied that he is seeking to remain in Australia for the purpose of supporting his wife during medical treatment. Instead, his evidence, migration history and his recent pursuit of two permanent visa applications, the latter to the High Court, indicates that he does want to stay in Australia permanently.WHAT ARE THE APPLICANT HUSBAND’S GROUNDS?
Ratio Decidendi
Legal Principle Established
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