Evangelio (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by Ms Evangelio. The dispute concerned whether Ms Evangelio and her non-migrating sons met the health requirements stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The Tribunal was required to determine if the medical opinions regarding the sons' intellectual impairments were valid and if the applicant's circumstances warranted a waiver of the health requirement.

The primary legal issue before the Tribunal was whether the applicant's three non-migrating sons satisfied PIC 4007(1)(c), which requires an applicant to be free from a disease or condition that would likely necessitate health or community services, resulting in significant cost or prejudice to access for Australian citizens or permanent residents. The Tribunal also considered whether compassionate and compelling circumstances existed to justify waiving this criterion, as permitted by PIC 4007(2). The Tribunal had to assess whether a Medical Officer of the Commonwealth opinion was required and, if so, whether it had been correctly applied by the assessing officer.

The Tribunal reasoned that while Medical Officer of the Commonwealth opinions indicated that the applicant's sons suffered from varying degrees of intellectual impairment, leading to projected significant costs to the Australian community, the applicant had provided evidence of compassionate and compelling circumstances. Specifically, the applicant stated she had no intention of having her sons migrate to Australia, maintained daily contact, and provided them with substantial financial support. The Tribunal found that, in light of these circumstances and the applicant's stated lack of intention to seek their migration, the granting of the visa would be unlikely to result in undue cost or prejudice to Australian citizens or permanent residents.

Consequently, the Tribunal determined that PIC 4007(1)(c) could be waived. The Tribunal remitted the application for the subclass 820 visa to the Minister for reconsideration, with a direction that the applicant met the criteria under PIC 4007(2)(b).