Cabuños (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (subclass 187) by a citizen of the Philippines. The applicant's son, Gabriel, who was a non-migrating member of his family unit, had been diagnosed with moderate autism spectrum disorder. The central dispute revolved around whether the applicant, and by extension his son, met the health criteria stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The Administrative Appeals Tribunal was tasked with reviewing the delegate's decision to refuse the visa.

The primary legal issue before the Tribunal was to determine if the applicant satisfied PIC 4007, specifically subclause (1)(c), which requires an applicant to be free from a disease or condition that would likely require health care or community services, and if the provision of such services would result in significant cost to the Australian community or prejudice access for citizens or permanent residents. The Tribunal also considered the applicability of the waiver provision under subclause (2) of PIC 4007, which allows for the waiver of requirements if granting the visa would be unlikely to result in undue cost or prejudice.

The Tribunal reasoned that, in accordance with regulation 2.25A, it was required to seek and take as correct the opinion of a Medical Officer of the Commonwealth (MOC) when assessing PIC 4007 for a permanent visa application where there was information suggesting a potential failure to meet the criterion. The applicant's son's condition meant that the MOC's opinion was determinative. As the applicant had not satisfied the requirements of PIC 4007, and the waiver provision was not applicable in this instance, the Tribunal concluded that the delegate's decision to refuse the visa should be affirmed.