1515273 (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa, where the applicant, [Applicant 4], a migrating family member, was assessed by a Medical Officer of the Commonwealth (MOC) as not meeting the health requirement under PIC 4007(1)(c)(ii)(A). The delegate had previously decided not to waive this requirement, finding that the identified significant costs to the community were not outweighed by mitigating factors or compassionate and compelling circumstances. The applicant's family unit had been granted Subclass 457 visas based on the primary applicant's employment with the nominator, who had also nominated them for the permanent visa under review.

The central legal issue before the Tribunal was whether [Applicant 4] met the health criteria stipulated by PIC 4007, specifically concerning the potential for significant cost to the Australian community arising from their medical condition. This involved determining if the estimated cost of $2,730,240 for healthcare and community services was so substantial as to preclude a waiver, even if the MOC opined that granting the visa would not prejudice the access of Australian citizens or permanent residents to such services.

The Tribunal reasoned that while the MOC's opinion indicated a significant cost to the community, it also stated that granting the visa would not likely prejudice the access of Australian citizens or permanent residents to health care or community services. The Tribunal concluded that the delegate had not adequately considered the waiver provision under PIC 4007(2)(b), particularly the aspect of "undue cost to the Australian community" and the mitigating factors. Consequently, the Tribunal remitted the application for reconsideration, directing that the fourth named applicant satisfies PIC 4007(2)(b) for the purposes of clause 186.224(2) of Schedule 2 to the Regulations.