1731356 (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visa by a family unit. The dispute centred on whether the third-named applicant, a child, met Public Interest Criterion (PIC) 4005, which requires applicants to be free from certain diseases or conditions that could impose a "significant cost" on the Australian community or prejudice access to health and community services. The Administrative Appeals Tribunal was required to determine if the child met PIC 4005, and consequently, if the visa application as a whole could be granted.

The Tribunal was required to assess the validity and impact of a Medical Officer of the Commonwealth (MOC) opinion which stated that the third-named applicant had a severe functional impairment likely to require long-term support services and was likely to be permanent. The Tribunal considered Regulation 187.235, which mandates that both the primary applicant and each member of their family unit included in the visa application must satisfy PIC 4005. The Tribunal noted that PIC 4005 operates as a "one fails, all fail" provision with no discretion to waive its requirements.

The Tribunal reasoned that if the MOC's opinion was valid, it was bound to accept it as correct, leading to the conclusion that the third-named applicant did not meet PIC 4005. The Tribunal found the MOC report to be valid and concluded that the child's condition would likely require long-term support services, resulting in a significant cost to the Australian community. Despite expressing sympathy for the applicants and acknowledging compelling evidence, the Tribunal affirmed the decision not to grant the visas, as the failure of one applicant to meet PIC 4005 meant the entire application failed. The Tribunal did not make a specific recommendation for referral to the Minister but noted the applicants could approach the Minister with appropriate representation.