PELDEN (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (Migration and Refugee Division) regarding the refusal of a Regional Employer Nomination (Permanent) visa (Subclass 186) for the applicants, Janchu Pelden and her child, Kinley. The primary dispute revolved around whether Kinley, the third applicant and child of the primary applicant, met Public Interest Criterion (PIC) 4005, which is a mandatory requirement for the grant of the visa.

The legal issue before the Tribunal was to determine if Kinley satisfied PIC 4005, specifically concerning his medical condition. This criterion requires applicants to be free from diseases or conditions that could pose a threat to public health or a danger to the Australian community, or that would likely result in significant costs to the community through the need for health or community services. The Tribunal was also required to consider the validity of the most recent Medical Officer of the Commonwealth (MOC) opinion regarding Kinley's health.

The Tribunal acknowledged that Kinley, as a member of the family unit included in the visa application, must satisfy PIC 4005 unless it would be unreasonable to require the assessment, a claim not made by the applicants. While noting a discrepancy between a 2016 and a 2019 MOC opinion, the Tribunal held that it could not substitute its own findings for those of the MOC and must accept the most recent opinion as correct if found valid. The 2019 MOC opinion identified Kinley as having moderate functional impairment, cognitive and hearing impairment, with a history of premature birth and suspected hypoxic encephalopathy. The Tribunal found no waiver provisions for failure to meet PIC 4005 and concluded that Kinley's condition, as assessed by the MOC, would likely result in significant costs to the Australian community.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Subclass 186 visas, as Kinley failed to meet the health requirements stipulated by PIC 4005. The Tribunal also noted that while it did not make a specific recommendation for referral under Ministerial guidelines, the applicants could directly request Ministerial intervention from the Department.