Pathirannehelage (Migration)

The applicant, a Sri Lankan citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning his application for a Medical Treatment (Visitor) (Class UB) Subclass 602 visa. The applicant's wife had also applied for a similar visa, and their applications were linked. The core dispute revolved around whether the applicant met the criteria for a Subclass 602 visa as a support person for his wife, who was in Australia receiving medical treatment.

The primary legal issue before the court was to determine whether the applicant satisfied the requirements of subclause 602.212(4) of Schedule 2 to the Migration Regulations 1994. This subclause requires that the applicant seeks to provide emotional and other support to a person who meets specific criteria for a medical treatment visa, and that the person to whom support is to be provided holds such a visa. The applicant had not claimed to meet any other subclauses of clause 602.212.

The Tribunal reasoned that the applicant's eligibility for the visa was entirely contingent on his wife being granted her own medical treatment visa. Given that the wife's visa application had been remitted back to the delegate for reconsideration following the Tribunal's findings that she satisfied clause 602.216, the Tribunal determined it would be inefficient to delay a decision on the applicant's review. For administrative convenience and to ensure both applications could be considered concurrently by the same decision-maker, the Tribunal set aside the delegate's decision to refuse the applicant's visa.

The Tribunal remitted the applicant's visa application back to the delegate for reconsideration. The direction provided was that if the applicant's wife were granted a Subclass 602 visa, the applicant would then satisfy clause 602.212(4)(a) of Schedule 2 to the Regulations.