Azim (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by a child who had resided in Australia since 2015 as a dependant of his mother. The applicant, a citizen of Bangladesh, was born in 2010. His mother, the sponsor, had her Australian citizenship approved in December 2020. The applicant's father, a qualified mechanical engineer and pharmacist, had previously resided in Australia and sought employment in regional areas without success, returning to Bangladesh to support his family. Delays had been experienced in the assessment of the father's partner visa application due to COVID-19 related staffing shortages.

The primary legal issue before the Tribunal was whether the applicant met the health criteria under paragraph 4007(1)(c) of Schedule 4 to the Migration Regulations 1994, specifically concerning the potential cost to the Australian community or prejudice to the access of Australian citizens or permanent residents to health and community services. This criterion requires an applicant to be free from a disease or condition that would likely necessitate health or community services, the provision of which would result in significant cost or prejudice to access. The Tribunal also considered whether the circumstances warranted a waiver of this requirement under subclause 4007(2), which allows for a waiver if the applicant meets all other visa criteria and granting the visa would be unlikely to result in undue cost or prejudice.

The Tribunal found that the applicant had met the requirements of paragraphs 4007(1)(aa) and (ab) concerning undertaking and complying with medical assessments. However, the delegate had refused the visa on the basis that the applicant did not satisfy paragraph 4007(1)(c), finding that the potential healthcare costs did not justify a waiver on compelling or compassionate grounds. The Medical Officer of the Commonwealth's opinion indicated the applicant has moderate cognitive impairment associated with Autism Spectrum Disorder, requiring some supervision but being independent in most daily activities. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant meets the criteria under PIC 4007(1)(c) and 4007(2)(b) for the purposes of the Subclass 802 visa.