1615886 (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 186 Employer Nomination (Permanent) visa. The primary issue revolved around the third applicant, a child with moderate intellectual impairment, and whether she met the health criteria stipulated in Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The Medical Officer of the Commonwealth (MOC) had assessed that the child's condition would likely result in significant costs to the Australian community, estimated at over $2.6 million, for healthcare and community services, including residential care, Commonwealth and state disability services, and special education.

The legal issues before the Tribunal were whether the third applicant satisfied PIC 4007(1)(a), (b), and (c), and if not, whether the waiver provision under PIC 4007(2) should apply. PIC 4007(1)(c) requires an applicant to be free from a disease or condition that would likely require health care or community services resulting in significant cost to the Australian community or prejudice access to such services for Australian citizens or permanent residents. The Tribunal was required to consider the MOC's opinion, which, under regulation 2.25A, is generally taken to be correct, but the Tribunal must be satisfied that the MOC applied the correct test.

The Tribunal reasoned that while it must take the MOC's opinion as correct, it also needed to be satisfied that the MOC had applied the correct statutory criteria. The Tribunal noted that the applicant had sought to provide further expert evidence regarding the potential costs and had requested a delay to obtain an updated report from a specialist. Given the complexity of assessing the MOC's opinion and the potential for further evidence to impact the cost assessment, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the first applicant met PIC 4007(1)(a) and (b), and PIC 4007(2)(b) for the purposes of the visa criteria.