VIDAL (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)), made by a review applicant who was an Australian citizen. The dispute centred on the health criteria for the visa, specifically as they applied to the review applicant's non-migrating biological child, Jaimee Antonia Vidal, who resided in the Philippines. The review applicant had provided documentation, including an affidavit of guardianship and a power of attorney, indicating that his sister would care for Jaimee in the Philippines.

The Tribunal was required to determine whether the non-migrating child, Jaimee Antonia Vidal, met the health criteria prescribed by the *Migration Regulations 1994* for the grant of the visa. This involved considering whether the child had a disease or condition that would likely result in significant costs to the Australian community or prejudice the access of Australian citizens or permanent residents to health or community services, and whether a waiver of these criteria was applicable.

The Tribunal reasoned that the health criteria, as set out in cl.309.228(2)(b) and Schedule 4, cl.4007(1)(c) of the Regulations, applied to non-migrating family members. While acknowledging the documentation provided by the review applicant regarding the child's care in the Philippines, the Tribunal noted that the Medical Officer of the Commonwealth's opinion was outdated and predated recent policy changes regarding the assessment of health criteria. The Tribunal concluded that the non-migrating child did not satisfy the health criteria. However, the Tribunal also considered the possibility of a waiver under cl.4007(2), noting that the review applicant had provided evidence of guardianship and power of attorney, suggesting that the child would not be a burden on Australian resources.

Consequently, the Tribunal remitted the application for the Partner (Provisional) visa to the Minister for reconsideration. The remittal was made with the direction that the first named visa applicant (the review applicant) met the criteria for the visa, and that the Minister should consider the remaining criteria, including the health criteria for the non-migrating child and the potential for a waiver.