2212059 (Migration)

This matter concerned an appeal by applicants for Skilled Nominated (Permanent) visas, who were refused on the grounds that their son did not satisfy Public Interest Criterion (PIC) 4005 of Schedule 4 to the Migration Regulations 1994. The dispute centred on the assessment of whether the son, who had mild autism spectrum disorder, would likely require health care or community services resulting in a "significant cost" to the Australian community. The decision was made by Deputy J.l Redfern Psm P.

The court was required to determine the validity of the Medical Officer of the Commonwealth (MOC) opinions relied upon by the delegate in assessing the son's eligibility under PIC 4005. Specifically, the applicants contended that the MOC opinions were invalid or improperly formulated, and that the assessment by the MOC of estimated costs for a hypothetical person with the same condition was too general and did not properly apply the statutory criteria. The court also considered whether the MOC had applied the correct test by assessing the condition and then applying the statutory criteria by reference to a hypothetical person suffering from that specific form or level of the condition, rather than a generic form.

The Deputy President noted that while MOC opinions are generally to be taken as correct if properly formulated, they must be based on the correct application of the relevant criteria. The court referred to established case law, including *Minister for Immigration and Multicultural Affairs v Seligman* and *Robinson*, which held that a MOC opinion is only binding if it is of a kind authorised by the Regulations and if the MOC has applied the proper test. The Deputy President accepted the submission that the MOC must ascertain the specific form or level of the applicant's condition and then apply the statutory criteria by reference to a hypothetical person with that precise condition, not a generic one. Despite finding that the MOC opinions were not demonstrably unlawful or inconsistent with policy, the Deputy President acknowledged the force of the applicants' submission that the estimated costs for a hypothetical person might be an overestimation given the son's existing improvement and the applicant's expertise in disability services.

Ultimately, the Tribunal affirmed the decision not to grant the visas. While acknowledging the potential harshness of the outcome due to the absence of a waiver provision for PIC 4005 and the son's Australian birth and positive response to early intervention, the Deputy President found that the MOC opinions, as formulated, led to the conclusion that the health care and community services required would likely result in a significant cost to the Australian community, thus failing to meet the criterion.