Udani (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Regional Employer Nomination (Permanent) visa (Subclass 187) to an applicant. The primary dispute revolved around whether the secondary applicant, Master Udani, met the health criterion stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. Master Udani had a moderate developmental delay due to cerebral palsy stemming from birth prematurity, which was estimated to incur a significant cost to the Australian community through various services.

The Tribunal was required to determine if Master Udani was free from a disease or condition that would likely require health care or community services, the provision of which would result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. Specifically, the Tribunal had to consider whether the estimated cost of $1,362,000 for disability and special education services met the threshold for "undue cost" as contemplated by the regulations. The Tribunal also had to consider the requirement for a Medical Officer of the Commonwealth (MOC) opinion and the weight to be given to such an opinion.

The Tribunal reasoned that PIC 4007(1)(c) applied to the applicant's situation, as the estimated costs for health and community services were substantial and would likely result in significant cost to the Australian community. The Tribunal noted that the exemption provided for temporary visas under PIC 4007(1B) did not apply to this permanent visa application. While a MOC opinion was required, the Tribunal found that the applicant had not satisfied the requirements of PIC 4007, particularly concerning the potential cost to the community. Consequently, the Tribunal concluded that clause 187.224(3) of Schedule 2 to the Regulations was not met.

Accordingly, the Administrative Appeals Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) visa to the applicant.