1712150 (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa, Temporary Residence Transition stream, made by the first-named applicant on behalf of himself and his family. The dispute arose when the third-named applicant, who has Downs Syndrome and mild intellectual impairment, was assessed by a Medical Officer of the Commonwealth as not meeting health criterion PIC 4007(1)(c)(ii)(A) due to the likely significant cost of $2,185,000 to the Australian community for healthcare and community services over her lifetime. The delegate refused to waive this criterion, finding that the identified cost was not outweighed by mitigating factors or compelling and compassionate circumstances. The decision was reviewed by the Tribunal.

The legal issues before the Tribunal were whether the significant cost to the Australian community associated with the third-named applicant's condition was "undue," and whether there were compelling or compassionate circumstances that warranted a waiver of the health criterion under PIC 4007(2)(b). The Tribunal was required to consider the applicants' financial and social capacity to contribute to any costs, the third-named applicant's potential contribution to the community, and the best interests of any children involved.

The Tribunal reasoned that while the MOC's assessment of significant cost was accepted, the question of whether that cost was "undue" required a broader consideration of the applicants' circumstances. The applicants provided substantial evidence demonstrating their strong financial capacity through secure employment, private savings, and superannuation, indicating they could offset potential costs. Furthermore, they presented evidence of their deep integration into the Australian community, their strong family support network, and the third-named applicant's own contributions and positive relationships. The Tribunal also noted the strong familial support, including a niece qualified in special needs education who regularly cared for the third-named applicant.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the first-named applicant met PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, indicating that the waiver provisions were likely to be satisfied upon further assessment.