Kashyap (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 186 Employer Nomination Scheme visa made by an applicant from India, along with three secondary applicants, who were residing in Tasmania. The primary dispute concerned whether the applicant met the health criteria under Public Interest Criterion (PIC) 4007, specifically in relation to a diagnosed condition of mild cognitive impairment, or Down Syndrome, in the applicant's eldest daughter, Ms K. The applicant contended that granting the visa would not result in an "undue cost" to the Australian community and that the relevant requirements could be waived.

The legal issues before the Tribunal were whether the applicant and secondary applicants met the health requirements of PIC 4007, and if not, whether the waiver provisions under PIC 4007(2)(b) were satisfied. PIC 4007(1)(c) requires an applicant to be free from a disease or condition that would likely necessitate health or community services, the provision of which would likely result in significant cost to the Australian community or prejudice access to such services for Australian citizens or permanent residents. The Tribunal had to determine if the potential costs associated with Ms K's condition constituted an "undue cost" and if there were compelling and compassionate circumstances warranting a waiver.

The Tribunal reasoned that while Ms K had a diagnosed condition requiring ongoing support, the evidence presented indicated that the projected costs to the Australian community were not "undue." This conclusion was based on several factors, including the applicant's financial independence, the family's contributions to the community, the provision of support for Ms K through the National Consistent Collection of Data (NCCD) program, and the family's ability to privately fund additional therapies such as speech pathology. The Tribunal also considered the compelling and compassionate circumstances, such as the family's strong social and community ties in Australia and the potential negative impact of relocation on the children. Applying the principles from cases like *Bui* and *Singh*, the Tribunal found that the cumulative circumstances were sufficient to satisfy the waiver requirements under PIC 4007(2)(b).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the first applicant met the criteria under PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, meaning the health requirement could be waived. The Minister was to consider the remaining criteria for the visa grant.