Shin (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The applicant was a secondary applicant child with cerebral palsy and intellectual impairment, who had been found by the original delegate not to meet Public Interest Criterion 4005, which requires applicants to be free of diseases or conditions likely to result in significant cost to the Australian community. The Federal Circuit Court had previously remitted the matter to the Tribunal for reconsideration after finding that the delegate’s decision notice had not been sent to the applicant’s authorised representative.

The primary legal issues before the Tribunal were whether it had jurisdiction to consider the review, given the earlier finding of non-compliance with notification requirements, and whether the applicant satisfied Public Interest Criterion 4005. The Tribunal was required to determine if its jurisdiction was conditional on valid notification being received by the applicant or their representative, and if the applicant’s medical condition met the threshold for refusal under PIC 4005, irrespective of whether public care or services had been utilised.

The Tribunal reasoned that its jurisdiction was not conditional on the Department’s compliance with notification requirements under section 494D(1) of the Migration Act 1958 (Cth), drawing on established case law. It found that while non-compliance might affect the commencement of the time limit for lodging a review application, a valid application could still be lodged. Regarding PIC 4005, the Tribunal noted that the criterion applied regardless of whether public care or services were actually used. Despite being granted multiple extensions, the applicant failed to provide requested medical information by the final deadline. Consequently, the Tribunal found the applicant was not entitled to a hearing and proceeded to consider the matter based on the available information, including the delegate’s decision and a Medical Officer of the Commonwealth opinion, which indicated the applicant did not satisfy PIC 4005.

The Tribunal affirmed the delegate’s decision.