1722069 (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 838 (Aged Dependent Relative) visa. The primary applicant, a citizen of the Philippines, was sponsored by her Australian citizen daughter. The secondary applicant was the primary applicant's son. The delegate had refused to grant the visa to both applicants.

The central legal issue before the Tribunal was whether the primary applicant met Public Interest Criterion (PIC) 4005, which requires an applicant to be free from certain diseases or conditions that may impact the Australian community. Specifically, the Tribunal had to determine if the applicant's health condition, assessed by a Commonwealth Medical Officer (CMO) as causing moderate functional impairment and significant mobility impairment, requiring ongoing community and residential care services, meant she did not meet PIC 4005(1)(c). The secondary applicant's eligibility was also in question, as he did not meet the definition of a dependent child.

The Tribunal reasoned that PIC 4005(1)(c) requires an applicant to be free from a disease or condition that would likely necessitate health or community services, and the provision of such services would likely result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. The Tribunal noted that for permanent visa applications, the exclusion provisions in PIC 4005(3) do not apply. The CMO's opinion, which the Tribunal is required to take as correct under regulation 2.25A, stated that the applicant had a condition requiring community and residential care services for the duration of her life, which would likely incur significant costs. The Tribunal also considered that the secondary applicant did not meet the definition of a dependent child, having declared dependent children and a de-facto spouse in the Philippines, and having recent full-time work experience.

The Tribunal affirmed the delegate's decision not to grant the visa to either applicant. The primary applicant failed to meet PIC 4005 due to her health condition, and the secondary applicant failed to meet the definition of a dependent child.