Rai (Migration)

This case concerned an application for a Skilled Work Regional (Provisional) (Class PS) visa (subclass 491) by Ms Yojana Rai and her son, Kaayan. The primary issue was whether Kaayan, who has severe cerebral palsy due to a chromosomal abnormality, met the health criteria under Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994. Specifically, the dispute centred on whether the provision of healthcare and community services for Kaayan would be likely to result in a "significant cost" to the Australian community. The Administrative Appeals Tribunal (AAT) was required to review the delegate's decision to refuse the visa.

The legal issues before the Tribunal were twofold: first, whether the opinion provided by the Medical Officer of the Commonwealth (MOC) was valid, and second, whether the estimated costs for Kaayan's healthcare and community services would likely result in a "significant cost" to the Australian community, as defined by the relevant policy and regulations. The Tribunal also considered the application of government policy, including the Procedural Instruction for the Health Requirement and the Disability Guidance Note, and whether these documents were consistent with the Migration Act and Regulations.

The Tribunal reasoned that while the MOC opinions indicated costs exceeding the $51,000 threshold considered significant by the Department, the validity of these opinions required scrutiny. Drawing on established case law, the Tribunal noted that a MOC opinion is only binding if it applies the proper test and assesses matters by reference to a hypothetical person with the condition in question, over the prescribed period. The Tribunal found that the MOC's assessment, based on estimated costs for a hypothetical person, might be an overestimation, particularly concerning special education services, given Kaayan's specific circumstances, including his condition's improvement and his parents' engagement in his care. Despite acknowledging the potentially harsh outcome due to the absence of a waiver for PIC 4005, the Tribunal affirmed the delegate's decision not to grant the visa.