AHN (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a Student (Temporary) (Class TU) visa to the applicant, AHN. The applicant, a dependent child with severe and permanent functional impairment due to cerebral palsy, had previously had two similar visa applications refused on health grounds. The current application was also refused because the applicant did not meet Public Interest Criterion (PIC) 4005.

The primary legal issue before the Tribunal was whether the applicant met PIC 4005, specifically subclause (1)(c), which requires an applicant to be free from a disease or condition that would likely necessitate health or community services resulting in significant cost to the Australian community or prejudice access for citizens and permanent residents. The Tribunal was required to consider the opinion of a Medical Officer of the Commonwealth (MOC), which it must take as correct under the Migration Regulations 1994.

The MOC's opinion stated that the applicant has a severe, permanent functional impairment due to cerebral palsy, requiring her to be wheelchair-bound and dependent in most daily activities. The MOC concluded that a hypothetical person with the applicant's condition would likely require state disability and special education services, leading to significant costs to the Australian community. The Tribunal noted that the applicant's mother had provided information regarding her financial capability to support herself and her daughter, but this did not alter the assessment under PIC 4005(1)(c), which focuses on the likely cost of services irrespective of whether they will actually be used by the applicant.

The Tribunal affirmed the decision to refuse the visa, finding that the applicant did not meet the criteria for the grant of the Student (Temporary) visa as she failed to satisfy PIC 4005.