Shurvinton (Migration)

This matter concerned an appeal by Mr Shurvinton against a decision not to waive the health requirement for a Subclass 186 Employer Nomination (Permanent) visa. The visa applicant's son, Master Shurvinton, had been assessed by a Medical Officer of the Commonwealth as having severe autism spectrum disorder, which meant he did not satisfy Public Interest Criterion (PIC) 4007. This criterion requires applicants to be free from diseases or conditions that could result in significant costs to the Australian community through healthcare and community services. Despite a recommendation from Health Policy not to grant a waiver, the applicant provided further information, including a letter from the Victorian Government highlighting the applicant's critical role in projects with significant economic and employment potential for the state.

The primary legal issue before the Tribunal was whether the delegate had erred in refusing to waive PIC 4007(1)(c) in relation to Master Shurvinton. This involved considering whether the granting of the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to the access of Australian citizens or permanent residents to healthcare or community services, as required by PIC 4007(2). The Tribunal also had to consider the weight to be given to the economic benefits and potential job creation associated with the applicant's presence in Australia, as articulated by the Victorian Government.

The Tribunal reasoned that the delegate's decision not to waive the health requirement was based on an assessment of potential significant costs to the Australian community. However, the Tribunal noted that the Skilled Waiver Submission referred to multiple MOC opinions with varying cost estimates, and crucially, it also noted the strong support from the Victorian Government. This support detailed the applicant's unique and essential role in projects with major job growth potential, arguing that the economic input from the applicant's continued presence far outweighed any potential burden from the dependent's care. The Tribunal found that the delegate had not adequately considered the evidence regarding the applicant's potential contribution to Australia and the economic benefits that would be lost if the visa were refused.

Consequently, the Tribunal remitted the application for reconsideration. The Tribunal directed that the first named applicant (Mr Shurvinton) met the criteria for the Subclass 186 visa, specifically PIC 4007(2)(b), indicating that the waiver should be granted.