Jamshaad (Migration)

This matter concerned an application for review of a delegate's decision to refuse a Temporary Skills Shortage (Class GK) visa (Subclass 482) made by the applicant, Jamshaad, on behalf of Kayban. The dispute centred on whether the Tribunal had jurisdiction to hear the review and whether Kayban met the relevant health requirements for the visa.

The legal issues before the Tribunal were twofold. Firstly, it had to determine whether it possessed jurisdiction to hear the application for review, particularly in light of a legislative amendment that occurred after the delegate's decision but before the application for review was lodged. Secondly, the Tribunal was required to assess whether Kayban met Public Interest Criterion 4007, specifically concerning the likelihood of their medical condition requiring health care or community services, and whether this would result in a significant cost to the Australian community or prejudice access for citizens and permanent residents.

The Tribunal reasoned that the legislative amendment, which came into effect on the day the application for review was lodged, did not apply retrospectively to the delegate's decision. Therefore, the previous version of the provision governed the matter, and it was not a requirement for Kayban to be sponsored by an approved sponsor at the time of the application for review. Regarding the health requirements, the Tribunal considered the opinion of a Medical Officer of the Commonwealth concerning Kayban's condition, which was described as cerebral palsy and haemophilia. While this condition was likely to require health care and community services, the Tribunal found that certain costs, such as social security benefits and specific medication subsidies, were excluded from the calculation of cost to the Australian community under the relevant provisions. Furthermore, the Tribunal noted that Kayban, as a temporary visa holder, was not eligible for national or state disability services, and the family bore most of the costs. Consequently, the actual cost to the Australian community was deemed minimal, and the criterion could be waived if granting the visa was unlikely to result in undue cost.

The Tribunal concluded that it had jurisdiction to hear the matter and that the public interest criterion concerning health requirements could be waived. Accordingly, the decision under review was remitted to the delegate for reconsideration.