Yusuf (Migration)

This matter concerned a review of a decision to refuse a visa to the applicant, who claimed to be the remaining relative of her Australian citizen mother. The applicant, born in Somalia in 1978, arrived in Australia in 2014. She had been separated from her biological mother at birth and raised by neighbours in Somalia, with her adopted parents now deceased. DNA testing confirmed her biological mother, Ms Faduma Hussein, who became an Australian citizen in 2004, was indeed her mother. The Tribunal had previously found that the arrangement for her care in Somalia did not constitute a customary adoption under the regulations, meaning her caregivers and their children were not considered her near relatives for the purposes of the visa. The applicant’s biological father was deceased, and she had no siblings other than those of her biological mother, all of whom resided in Australia.

The primary legal issue before the Tribunal was whether the visa applicant met Public Interest Criterion (PIC) 4005, specifically subclause (1)(c), which requires an applicant to be free from a disease or condition that would likely require health or community services, and for which the provision of such services would likely result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. The applicant suffered from right-side hemiplegia and severe aphasia following two strokes, rendering her wheelchair-bound and dependent on a carer for all daily activities.

The Tribunal affirmed the decision under review, finding that the applicant did not meet PIC 4005(1)(c). A Medical Officer of the Commonwealth (MOC) opinion, provided at the applicant's request, concluded that a hypothetical person with the applicant's condition, at the same severity, would likely require ongoing care and disability support services, and that this condition was likely permanent. The MOC noted a significant deterioration in the applicant's personal care abilities between medical examinations in 2019 and 2021, attributing this to strokes in 2017 and 2019. The MOC opined that such a hypothetical person would likely require Commonwealth disability support services, leading to the conclusion that the applicant did not meet the health requirement. The Tribunal accepted this opinion, finding that the applicant's condition would likely result in significant costs to the Australian community for health and community services.