Bhuiyan (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for Skilled Nominated (Permanent) visas (Class SN, Subclass 190) made by the applicants. The dispute concerned whether the applicants' dependent child met the health criteria for the visa, specifically in relation to a disability present at birth.

The primary legal issue before the Tribunal was whether the dependent child satisfied the health requirements as stipulated by the Migration Regulations 1994 (Cth). This involved assessing the child's medical condition against the prescribed criteria, particularly concerning the potential impact of the disability on the Australian community and the need for health services.

The Tribunal's reasoning focused on the opinion provided by the Medical Officer of Commonwealth (MOC). The MOC's opinion indicated that while the child's condition was progressing normally and the child was attending a mainstream school, the disability was such that it did not meet the specific thresholds for exemption or for being considered not to be a "substantial risk" to the Australian community or a drain on health services. The Tribunal found that it had no discretion to depart from the MOC's opinion when assessing the health criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Skilled Nominated (Permanent) visas, as the health requirements, as assessed by the MOC, were not met.