2005509 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, by a woman from Pakistan and her young child. The sponsor, an Australian citizen, was the partner of the primary applicant and the father of the secondary applicant. The sponsor and another child of the couple resided in Australia. The secondary applicant was found by a Medical Officer of the Commonwealth to have mild functional and cognitive impairment and a mild developmental delay, which was assessed as likely to result in significant costs to the Australian community through the need for health and community services. The delegate declined to waive this health requirement, finding that mitigating factors and compassionate or compelling circumstances did not outweigh the potential costs.

The court was required to determine whether the secondary applicant met the health criteria for the visa, specifically PIC 4007, and whether the health waiver under subclause (2) of clause 4007 should have been granted. The court also considered the procedural instructions regarding the best interests of a minor child residing in Australia and the potential for long-term separation of minor children from their parents.

The court reasoned that the delegate had erred in not adequately considering the best interests of the child, which should be a primary consideration when a decision affects a minor child in Australia. The court noted that the sponsor and one child were Australian citizens, and the sponsor had a history of returning to Pakistan to be with his wife, suggesting a desire for family unity. The court also considered the specific circumstances outlined in the procedural instructions, such as the potential for long-term separation of minor children from their parents. Ultimately, the court found that the application should be remitted for reconsideration.

The Tribunal remitted the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant met the criteria for a Subclass 309 visa, and the second named visa applicant met the criteria under PIC 4007(2)(b) for the purposes of clause 309.228 of Schedule 2 to the Regulations.