KAUR (Migration)

This matter concerned an application for review of a delegate's decision to refuse a visa to a child, an 11-year-old citizen of India, who suffers from a severe medical impairment. The sponsors of the visa application were Australian citizens who claimed to have left the child in India due to his grandparents' attachment and a belief that his condition might improve. The delegate had formed the view that the child had been deliberately misrepresented as a non-dependent family member during the sponsors' migration process to avoid a potentially unfavourable health outcome for all applicants, as the child's condition was assessed as likely to impose a cost of almost $7 million on the Australian community over his lifetime. The Tribunal was asked to determine whether the visa applicant met Public Interest Criterion (PIC) 4007.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4007, which requires an applicant to be free from diseases or conditions that would likely result in significant costs to the Australian community through healthcare and community services, or prejudice access to such services for Australian citizens or permanent residents. The Tribunal was required to consider the opinion of a Medical Officer of the Commonwealth (MOC), which, under regulation 2.25A of the Migration Regulations 1994, must be taken as correct if the MOC has applied the correct statutory test. The applicant's severe medical impairment had been assessed by the MOC as meeting the criteria for significant cost to the Australian community.

The Tribunal reasoned that as the applicant had applied for a permanent visa, the exemption provision in PIC 4007(1B) did not apply. The MOC's opinion, which indicated a lifetime cost of almost $7 million to the Australian community, was required to be taken as correct. The Tribunal found that the applicant had not satisfied the requirements of PIC 4007, and there were no compassionate or compelling reasons to waive this requirement, nor did the circumstances suggest that granting the visa would be unlikely to result in undue cost or prejudice to Australian citizens or permanent residents. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.