1826056 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802. The applicant, a child diagnosed with autism spectrum disorder and moderate developmental delay, was found not to meet Public Interest Criterion (PIC) 4007, which requires applicants to be free from conditions likely to require significant health or community services, or prejudice access to such services for Australian citizens or permanent residents. The Tribunal was required to consider whether the applicant met this criterion and whether there were compassionate or compelling circumstances to waive it.

The Tribunal was tasked with determining if the applicant satisfied PIC 4007, specifically the requirement to be free from a disease or condition that would likely necessitate health or community services, potentially incurring significant costs to the Australian community or prejudicing access for others. The Tribunal was bound by regulation 2.25A to accept the opinion of a Medical Officer of the Commonwealth (MOC) as correct when such an opinion was required. The central issue was whether the applicant's condition met the threshold for PIC 4007 and, if so, whether the waiver provision for compassionate or compelling circumstances applied.

The Tribunal acknowledged that the MOC's opinion, which indicated the applicant's condition would likely require health and community services, was to be taken as correct. However, the Tribunal found that it had not adequately considered the waiver provision under PIC 4007(2)(b) in light of the compassionate and compelling circumstances presented by the applicant's family. These circumstances included strong family links, the parents' employment in skills shortage sectors, their financial capacity to mitigate health costs, the applicant's progress under their care, and the family's intention to remain in Australia permanently. The Tribunal concluded that the decision had been made without a necessary hearing and that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with a direction that the applicant meets PIC 4007(2)(b) for the purposes of clause 802.223 of Schedule 2 to the Migration Regulations 1994.