El Mir v MICMSMA.

This matter concerned an appeal by Mr El Mir against a decision of the Migration Review Tribunal (MRT) which affirmed the refusal of his application for a medical treatment visa. The dispute centred on whether the MRT had made jurisdictional error in its assessment of Mr El Mir's eligibility for the visa.

The primary legal issues before the court were whether the MRT had erred in its identification of the relevant criteria under clause 602.212 of Schedule 2 to the Migration Regulations 1994 (Cth), and whether the MRT had made findings unsupported by evidence or based on erroneous assumptions. Specifically, the court considered whether the MRT had failed to assess Mr El Mir against alternative applicable criteria within clause 602.212, and whether this failure undermined its subsequent finding regarding clause 602.215, which concerned the genuine temporary stay requirement.

Driver J found that the MRT had made a jurisdictional error by failing to properly consider the application of clause 602.212(2) before assessing clause 602.215. The court reasoned that an assessment under clause 602.212(2) was a necessary precursor to the consideration of clause 602.215, and that the Tribunal's omission in this regard meant it was not fully informed when making its decision. While the court also considered the ground relating to findings unsupported by evidence, it found that Mr El Mir himself had provided evidence of receiving medical treatment in Lebanon, thus negating the argument that there was no evidence for the Tribunal's findings on this point.

Ultimately, the court concluded that the error made by the MRT in its assessment of clause 602.212(2) went to jurisdiction, and therefore upheld Mr El Mir's appeal. The court found that Mr El Mir had established jurisdictional error and granted him the relief sought.