Dang (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa by Mrs Thi Kim Li Dang, sponsored by Stephanie Nung to work as a Hairdresser. The application included Mrs Dang's husband and son, Dang Gia Huy Nong (Nino). The central dispute revolved around whether Nino met the health criteria under Public Interest Criterion (PIC) 4007, specifically PIC 4007(1)(c), which requires an applicant to be free from a disease or condition that would likely result in significant costs to the Australian community through healthcare or community services, or prejudice access to such services for other Australians. The delegate and a previous iteration of the Tribunal had determined that Nino, who has Down Syndrome, did not meet this criterion, and that a waiver under PIC 4007(2)(b) should not be granted due to the projected lifetime cost of his care, estimated at $3.2 million. The applicant had also argued that a prior Federal Circuit Court decision dismissing her judicial review application was infected by jurisdictional error, including the failure to disclose a non-disclosure certificate.

The court was required to determine whether the applicant met PIC 4007, and if not, whether the waiver provision under PIC 4007(2)(b) should have been applied. This involved assessing whether the projected costs of Nino's care would constitute an "undue cost" to the Australian community, as contemplated by the regulations. The court also considered arguments regarding jurisdictional error in previous decisions.

The court reasoned that the previous Tribunal had erred in its assessment of the waiver provision. While acknowledging the significant projected costs, the court found that the Tribunal had not adequately considered the specific circumstances and the potential for the waiver to be granted. The court noted that the applicant had met all other criteria for the visa. Consequently, the court remitted the application for reconsideration by the Minister, directing that the first applicant, Mrs Dang, be considered to meet PIC 4007(2)(b) for the purposes of clause 186.224(2) of the Regulations. This effectively meant that the waiver was to be granted, allowing the application to proceed to the consideration of remaining visa criteria.