Wang (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), by Yingxu Wang. The dispute centred on whether the applicant met the health criteria, specifically Public Interest Criterion (PIC) 4007, which requires an applicant to be free from diseases or conditions likely to result in significant cost to the Australian community or prejudice access to health services. The applicant had been advised by a Medical Officer of the Commonwealth (MOC) that they did not meet PIC 4007(1)(c)(ii)(A). The applicant sought a waiver of this requirement, citing the impact on their Australian citizen child with cerebral palsy and an elderly parent with multiple conditions. The decision was made by P. Wood, Senior Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4007, and if not, whether the requirements of PIC 4007(1)(c) should be waived. The Tribunal was required to determine if the MOC's opinion that the applicant's condition would likely result in significant cost to the Australian community was correctly formed and applied, and if not, to consider the grounds for a waiver under PIC 4007(2). The Tribunal noted that for permanent visas, the exemption in PIC 4007(1B) did not apply.

The Tribunal acknowledged the applicant's submissions and the medical reports provided, but was bound by the MOC's opinion under regulation 2.25A, provided the MOC had applied the correct legal test. The Tribunal found no error in the MOC's opinion regarding the applicant's condition and the likely costs. Consequently, the applicant did not satisfy PIC 4007(1)(c). However, the Tribunal determined that the appropriate course was to remit the application for reconsideration by the Minister, with a direction that the applicant met PIC 4007(2)(b) for the purposes of clause 820.223 of Schedule 2 to the Regulations, indicating a positive assessment for waiver considerations.