Badoola (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, subclass 101. The dispute concerned whether the visa applicant met Public Interest Criterion (PIC) 4007(1)(c)(ii)(A) and, if not, whether a waiver under PIC 4007(2)(b) was applicable.

The primary legal issue before the Tribunal was to determine if the visa applicant satisfied the health criteria under PIC 4007(1)(c)(ii)(A), which relates to the potential cost to the Australian community arising from a functional impairment. If the applicant did not meet this criterion, the Tribunal also had to consider whether the waiver provision under PIC 4007(2)(b) was satisfied, specifically whether granting the visa would be unlikely to prejudice the access of Australian citizens or permanent residents to health care or community services, and whether the likely cost to the community was "undue".

The Tribunal had regard to the opinion of the Medical Officer of the Commonwealth (MOC), which stated that the applicant had a moderate, stable functional impairment that would likely require community and state disability services, resulting in significant cost to the Australian community. However, the MOC also opined that granting the visa would not prejudice access to services for Australians. The Tribunal was satisfied that the MOC applied the correct test and that a new MOC opinion was unnecessary given the stability of the applicant's condition. Applying the MOC's findings, the Tribunal concluded that PIC 4007(2)(b)(ii) was met, as the applicant's condition would not likely prejudice access to services for Australians. While acknowledging the MOC's finding of significant cost, the Tribunal considered the dictionary definition of "undue" as "unwarranted" or "excessive" in assessing whether the cost was undue.

Ultimately, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa to the Minister for reconsideration, with the direction that the visa applicant meets PIC 4007(2)(b) for the purposes of clause 101.223.