Mayank (Migration)

This matter concerned an application for a Child (Residence) (Class BT) Subclass 802 visa by the applicant, Mayank. The Minister for Immigration had refused to grant the visa on the basis that the applicant did not meet the health criteria. The applicant's father provided oral evidence on behalf of his son at a public hearing. The case was heard by Nicholas McGowan.

The primary legal issue before the court was whether the applicant satisfied public interest criterion (PIC) 4007(1)(c)(ii)(A), and if not, whether the waiver provision under PIC 4007(2) should apply. Specifically, the court had to determine if the granting of the visa would be unlikely to result in "undue cost" to the Australian community, or "undue prejudice" to the access to health care or community services of an Australian citizen or permanent resident. The court was required to consider the opinion of a Medical Officer of the Commonwealth (MOC) as correct in determining whether the applicant met the requirements of PIC 4007(1)(a), (1)(b), or (1)(c), as mandated by Regulation 2.25A.

The court's reasoning focused on the interpretation of the waiver provision for PIC 4007(1)(c). Drawing on the Full Court of the Federal Court's decision in *Bui v MIMA*, the court noted that the waiver provision is engaged when the cost to Australia is likely to be "significant," and the decision-maker must then be satisfied that this significant cost will not be "undue." The court acknowledged that the determination of "undue cost" or "undue prejudice" involves broad judgments and may import consideration of compassionate or compelling circumstances. It was also noted that admitting a person might be considered to be to Australia's benefit in moral or other terms, even if they might make a significant call on health and community services. This evaluative judgment is distinct from the initial determination of significant cost, which is bound by the MOC's opinion.