Quirante (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, specifically a Subclass 309 (Spouse (Provisional)) visa. The dispute concerned whether a child, a secondary applicant for the visa, met the health requirements, particularly concerning the potential for significant cost to the community due to a disease or condition requiring care or services. The applicant had a mild developmental delay, which was assessed as likely to require special education and disability support services.

The Tribunal was required to determine if the child met the health criteria as stipulated in the Migration Regulations. Specifically, the issue revolved around paragraph 4007(1)(c) of Schedule 2 to the Regulations, which relates to diseases or conditions that might result in significant costs to the Australian community. The Tribunal also had to consider a new opinion from a Medical Officer of the Commonwealth, which, based on updated medical records, concluded that the child met the health requirements.

The Tribunal reasoned that the new opinion from the Medical Officer of the Commonwealth, which stated the child met the health requirements, should be taken as correct. It found that the decision to refuse the visa on health grounds had been made without a necessary hearing. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the third visa applicant, Jesse Galo, meets the health criteria under PIC 4007(1)(c) for the purposes of clause 309.228 of Schedule 2 to the Regulations. The Tribunal's order was to remit the application for Partner (Provisional) (Class UF) visas for reconsideration.