1724430 (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa by Mr B, with his wife Ms A and their children Master C and Master D included as members of his family unit. The central dispute revolved around whether Ms A met the health criteria stipulated by Paragraph 4007 of the Migration Regulations 1994, which, if not met by a family member, could prevent the primary applicant from satisfying the visa requirements. The decision was made by Penelope Hunter, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if Ms A satisfied the health requirement under PIC 4007, specifically concerning the likelihood of requiring health care or community services that would result in significant cost to the Australian community or prejudice the access of Australian citizens or permanent residents to such services. This assessment was based on two Medical Officer of the Commonwealth (MOC) reports, both of which indicated that Ms A had a particular medical condition that would likely necessitate ongoing medical review and treatment, leading to substantial costs.

The Tribunal reasoned that while the MOC reports indicated Ms A did not meet the health criteria, the Minister had the discretion to waive these requirements under subclause 4007(2) if granting the visa would be unlikely to result in undue cost or prejudice to Australian citizens or permanent residents. The Tribunal noted that submissions had been made by the visa applicants, including further medical information, and that the possibility of discrimination and stigma associated with Ms A's condition had been raised. Given these considerations, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the first named applicant meets PIC 4007(2)(b) for the purposes of clause 186.224(2) of Schedule 2 to the Regulations.