2003609 (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) Visa, Subclass 186, by three applicants. The primary dispute revolved around whether the applicants met Public Interest Criterion (PIC) 4007, which relates to health requirements for visa applicants. The Tribunal was required to determine if the applicants satisfied PIC 4007, particularly in light of one applicant being HIV positive, and whether the waiver provisions under PIC 4007(2) were applicable.

The Tribunal considered the requirements of PIC 4007(1)(c), which mandates that an applicant be free from a disease or condition likely to require significant health care or community services, or prejudice access to such services for Australian citizens or residents. It was noted that for permanent visa applications, the exemption in PIC 4007(1B) does not apply. The Tribunal also examined the circumstances under which a waiver of PIC 4007(1)(c) may be granted, requiring the applicant to satisfy all other visa criteria and the Minister to be satisfied that granting the visa would not result in undue cost or prejudice to community access to health care or community services.

The Tribunal concluded that the second applicant, who is HIV positive, did not meet PIC 4007(1)(c). However, the Tribunal found that the circumstances surrounding the applicants were sufficient to justify the exercise of the waiver under PIC 4007(2)(b). Accordingly, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the first named applicant meets PIC 4007(2)(b) for the purposes of the visa criteria.