BALATERO (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, by Mr. Balatero and his son, Master Enrique Balatero. The central dispute revolved around whether Master Balatero met Public Interest Criterion (PIC) 4007, which requires visa applicants to be free from certain diseases or conditions that could impose significant costs on the Australian community or prejudice access to health services. The case was heard by a member of the Tribunal.

The Tribunal was required to determine if Master Balatero met PIC 4007, specifically clauses (1)(a), (b), and (c), which address freedom from tuberculosis, threats to public health, and conditions likely to require significant health or community services at substantial cost to the community. The Tribunal also needed to consider whether a waiver of these requirements was applicable under PIC 4007(2). A key aspect of the determination involved assessing the validity and application of the Medical Officer of the Commonwealth (MOC) opinions provided.

The Tribunal reasoned that a MOC opinion was required to assess Master Balatero's compliance with PIC 4007. It noted that while a MOC opinion is generally taken as correct, the Tribunal must first be satisfied that the MOC applied the correct statutory criteria. The Tribunal found that the MOC opinions before it were not contested as to their validity. However, the Tribunal's decision indicates that the specific circumstances of the child's moderate intellectual impairment, including his educational progress and access to psychological and speech pathology support, were relevant considerations in the overall assessment of the PIC 4007 criteria and potential waiver.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the first named applicant (Mr. Balatero) be considered to meet PIC 4007(1)(a) and (b), and PIC 4007(2)(b) for the purposes of the visa criteria. This suggests that while the initial assessment of PIC 4007(1)(c) may have been problematic, other aspects of the PIC 4007 requirements, particularly concerning the waiver provision, were to be further considered.