Australia's Migration Health Requirement

A Human Rights Evaluation of the Health Requirement under Australian Migration Law

Most visa applicants that wish to enter Australia are required to meet the migration health requirement. The requirement supposedly aims to protect the public from the spread of diseases, preserve limited health infrastructures and limit health spending. In this respect, immigration laws perceive the individual migrant’s health condition as a potential threat to the public and to the State. Meanwhile, international human rights law upholds the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the State’s obligation not to discriminate based on the health status of individuals. In the context of children, for example, human rights law requires public actors to make decisions in consideration of the best interest of the child. How would this obligation impact decisions where a child does not meet the migration health requirement due to a pre-existing medical condition or disability? By reviewing the administration of the health requirement and the contemporary discourse on the right to health and non-discrimination, this project seeks to evaluate whether Australian practice accords with human rights obligations.

Catalogue

Judicial Decisions

Case Name and Reference	Year application was originally made	Type of Health Condition	VISA Category	Health Condition of Primary Applicant or Family Member	PIC C-Concern	Decision	Additional Comments
Salma v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 356; BC202303355	17 March 2018	Down Syndrome Estimated cost $109,500	Temporary Graduate Visas	Son born January 2013	PIC 4005	Held: Appeal Dismissed Whether primary judge erred in not finding that the decision of the Tribunal was affected by jurisdictional error as it was based upon a defective opinion of a Medical Officer	Finding that medical officer was not required to take into account the subjective or personal circumstances of visa in making consideration of where provision of health care would result in significant cost to Aus community
Shaikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3487 BC202013084	8 December 2014	Asymptomatic chronic viral Hepatitis B with antiviral medications	Business Skills (Provisional) (Class EB) Business Innovation and Investment (Provisional) (subclass 188) Visa with family unit of 7 (four year visa)	Second Applicant (Family Member)	PIC 4005	Held: Application Dismissed Question was whether jurisdictional error made in assessing whether one of the applicants met the requirements of PIC4005 on the assumption that the applicants would be permanent residence of Australia.	Follows Wong
Yung v Minister For Immigration and Border Protection [2020] FCCA 680; BC202002212	29 June 2015	Autism spectrum disorder Described as 'mild to moderate' and 'likely to be permanent'	Other Family (Residence) (Class BU) Visas with family unit of 3.	Secondary, third applicant (son)	PIC 4005	Held: Application dismissed At [77] the weakness in the applicants' argument is reveale. When the RMOC's report is read at least fairly, the applicants' compliant is really a challenge to the weight given by the RMOC to the medical evidence before her/him. As the Tribunal correctly found, matters of such weight are for the RMOC to determine.	Where the applicant submitted the condition was "dynamic" as set out in a psych report, and difficult to asses because it varied in presentation, including changes over time, and that there have been a continuing improvement in condition. Applicant arguments in line with Robinson however RMOC made reference to hypothetical person test.
Han v Minister for Home Affairs [2019] FCA 331; BC201901657	Applicant suffered acute liver function failure and underwent emergency liver transplant surgery, which was successful in 2011, but existence of condition as transplant recipient triggered act	Skilled (Residence) (Class VB) Skilled Independent (Subclass 885) visa.	Main Applicant	PIC 4005: because of previous transplant (successful)	Held: appeal dismissed Haque did not afford appellant support.	Applicant argued words ‘significant cost to Australian community’ were incapable of objective ascertainment or calculation.
Dang v Administrative Appeals Tribunal (2019) 273 FCR 87; (2019) 168 ALD 384; [2019] FCAFC 220; BC201911616	3 September 2013	Down Syndrome Estimated costs calculated at $3,253,216	Employer nomination visas subclass 186	Two year old son of applicant	PIC 4007	Held: Appealed AllowedWhere the minister had issued a certificate under s375A and there was a realistic possibility that disclosure of the s375A certificate would have led to scrutiny and production of documents that could have realistically resulted in a different outcome.	Distinguished from Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544; [2008] FCA 367
Singh v Minister for Immigration and Border Protection [2019] FCCA 310; BC201900696	21 December 2009	“significant chronic renal disease” which was “likely to be progressive”	Skilled (Residence) (Class VB) Subclass 885 visa	Primary	PIC 4005	Held: Application for extension of time Denied Application for extension of time, two years out of time as it was not in the interests of the administration of justice to grant application.	Applicant submitted they were currently “…absolutely fit and fine and happy to go for any medical tests further.”
CVM17 v Minister for Immigration and Border Protection [2019] FCCA 617; BC201901827	28 December 2014	Asymptomatic HIV Cost estimated at $705,600 pharma and $72,800 in services	Partner (Provisional) (Class UF) Visa	Primary	PIC 4007(1)(c)	Held: Application dismissed Applicant claims that Tribunal made jurisdictional error by relying on a MOC opinion that ceased to be current by the time the Tribunal made its decision. Finding that substantial time is not by itself a ground for finding it was not reasonably open to the Tribunal to find that the evidence before it did not demonstrate the MOC Opinion lacked currency of reliability. Finding that the Tribunal did not consider the opinions relevance, currency and reliability.	Applicant relies on Applicant Y and Seligman Interesting obiter about disagreements with Applicant Y at [14] Where the elapsed time between the date on the MOC and the Tribunal decision was 25 months and 23 days Distinguished from Applicant Y at [52]
Wong v Minister for Immigration and Border Protection (2018) 342 FLR 1; [2018] FCCA 3490; BC201812861	24 June 2016	Autism	Business Innovation and Investment (Class EB) (subclass 188) Visa with family unit	Son of first applicant	PIC 4005	Held: application dismissed Findings: No jurisdictional errors in seconds respondent's decision First respondent's decision not made arbitrarily. Applicants failed to establish that second respondent was legally unreasonable. Applicants' application did not reveal any jurisdictional error	Applicant argued that MOC erred in finding: Whether 'State Disability Services' would be required And assessed them on a period of permanent stay rather that temporary as they were applying
Guab v Minister for Immigration and Border Protection [2018] FCCA 3083; BC201812846	24 October 2013	Severe cerebral palsy with severe functional and cognitive impairment	Partner (Provisional) (Class UF) subclass 309 Visa	Dependant Child The child was not migrating	PIC 4007	Held: Application Dismissed	The criterion in subcl.309.228(2) (b) allowed the minister to waive PIC 4007 if they are satisfied it would be unreasonable
Sarabia v Minister for Immigration and Border Protection [2017] FCCA 2642; BC201709192	5 December 2012	Kidney dysfunction	Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa.	Secondary applicant to his wife’s application	PIC 4005	Held: Application Dismissed AAT referred to an incorrect and inapplicable legislative instrument in error. Such error was not jurisdictional in nature because no different result caused. Result would have to be same if remitted to AAT as medical condition uncontentious.
Mai v Minister for Immigration and Border Protection [2016] FCCA 2901; BC201609707	14 February 2009	HIV Diagnosed around 2011 Treating Doctor wrote: 'he remains completely asymptomatic' while his 'overall prognosis is excelled' in 2014	Skilled (Residence) (Class VB) visa	Main applicant	PIC 4005	Where the assessment was in relation to a hypothetical person not actual circumstances of the applicant Held: Application Dismissed	MOC wrote “a hypothetical person with the same disease or condition, at the same severity as the applicant would be likely to require health care…”
Kaur v Minister for Immigration and Border Protection [2016] FCCA 2275; BC201607565	29 December 2009	Asymptomatic chronic renal disease with renal transplant	Skilled (Residence) (Class VB) subclass 886 visas	Primary applicants husband	PIC 4005	Held: Application Dismissed Applicant alleged that the Tribunal basd their opinion on an incorrect version of PIC 4005	Applicant made various criticisms of the delegate’s decision but court limited to review tribunal decision not delegate decision
Haque v Minister for Immigration and Border Protection (2015) 298 FLR 375; [2015] FCCA 1765; BC201505916	24 June 2010	Autistic Spectrum Disorder with moderate development delay and behavioural problem however was "attending to all her personal hygiene and activities of daily living."	Skilled Sponsored subclass 886 with two children	Family member – 12 year old daughter at time	PIC 4005	Application Granted where: There were two opinions of the MOC. The Tribunal's reasons reveal some confusion between the two reports. Further, the second report, was based on a significant mistake of fact. Finally, the Tribunal refused to give the first applicant time within which to address the second opinion because it misunderstood for first applicant's complaint about the mistake of fact. Each of those reasons infected the Tribunal's decision with jurisdictional error and, as a consequences , its decision was to be set aside and the Tribunal would determine the review of the delegate's decision according to law.	Respondent relied upon obiter in Blair Haque: Although a decision maker is normally bound to accept the opinion of the MOC as to whether a person meets the relevant health criteria for the visa for which they have applied, the decision maker should only accept a MOC opinion that is properly formed and that is not based on significant mistaken facts. - 1729745 (Migration) [2019] AATA 5188 at [13]
Islam v Minister for Immigration (2015) 299 FLR 48; [2015] FCCA 2210; BC201507982	16 February 2009	Moderate developmental delay	Skilled (Residence) (Class VB) visas (subclass 886 visa) with members of family unit	Family member: Son	PIC 4005(1)C(ii)A)	Held: application dismissed No jurisdictional error Notably the Tribunal review was "proper, genuine and realistic inquiry" which did not fail to take into account any relevant considerations and there was no necessity for the Tribunal to undertake further inquiries in relation to applicants medical condition.	Test for whether an opinion meets reg2.25 in Islam
Traill v Minister for Immigration and Citizenship (2013) 135 ALD 324; [2013] FCCA 2; BC201310134	27 November 2008	Visual impairment	Skilled (migrant) (class VE) subclass 175 (skilled-independent) visas.	Husband of first applicant	PIC 4005	Held: Application Granted CMO failed to properly ascertain form or level of condition applicant suffered and then proceeded to make assessment at higher level of generality by reference to generic form of unidentified condition CMO opinion was unreliable, and delegate relied upon it. CMO report was so uninformative that opportunity for applicants to comment on it was meaningless and therefore process was unfair
Reynolds v Minister for Immigration and Citizenship (2010) 237 FLR 7; [2010] FMCA 6; BC201000081	10 February 2005	Cerebral palsy	Other Family (Class BU), subclasss 835 (Remaining Relative) visa	PRIMARY	4005(c)(ii)(A)	Numerous grounds of appeal, all failed Application Dismissed	Application of Blair, Imad, Robinson, Seligman , X v MIMIA
Pillay v Minister for Immigration and Citizenship [2009] FMCA 517; BC200904657	14 July 2006	Down Syndrome	Other Family (Migrant) (Class BO) subclass 115 (remaining relative) visa	Primary	PC4005	Held: Application Dismissed Whether Tribunal bound to take opinion if the Medical Officer as correct No real prospects	self-represented(?)
JP1 v Minister for Immigration and Citizenship (2008) 220 FLR 37; [2008] FMCA 970; BC200805872	Applied for review of original decision on 30 June 2003	Human immunodeficiency virus (HIV) Where applicant's treating Doctor said he wouldnt need medication for 14 years (estimated cost being $122,544 in total) But, the RMOC thought in nine years, based on average or perhaps within three years, based on examination.	Employer Nomination (Residence) (Blass BW) with wife and children	Main applicant	PIC 4005	Review primarily on the grounds that the Review Medical Officers' opinion was invalid. Ground 1: The tribunal did not make errors of law that vitiate its decision, namely: The RMOC did not have to specify cost. Any failure to comply with the PAM guidelines would not have invalidated the RMOC's opinion. Ground 2: The tribunal did not make jurisdictional error by not complying with s359A MA 1958 Ground 3: The Tribunal did not erroneously fail to exercise its jurisdiction by not compelling the Ministry for Immigration/RMO C to provide it with copies the applicant sought under FOI request. Held: All grounds failed, application dismissed with costs.	This case references the decision of the Full Federal Court in Seligman [48], [49] and [53].
Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544; [2008] FCA 367	23 July 2001	HIV positive Approximate cost $250,000	Partner (temporary) (class TK) Visa and Partner (residence) (class BS) visa Relationship broke down permanently in 2003 due to DV	Primary applicant	PIC 4007(1)	Held: Appeal allowed The MOC opinion relied upon by the Tribunal in relation to the waiver of the health criterion had to be a current opinion. considerably.	The MOC's opinion was 23 months old at the time of the Tribunals decision and the court considered the applicant's health or the treatments for her condition could have changed considerably. See [19] -[22]
Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 146 FCR 408; [2005] FCAFC 209; BC200507309	Unstated	HIV positive Required quarterly monitoring and self-administered medication at cost of $267.45 quarterly for five years and $1188 per month.	Student Visa (Temporary) (Class TU)	Primary	PIC 4005	Held: Appeal against FCA decision which reversed refusal of student visa allowed Question was whether self-administered medication constituted health care. Self-administered medication constituted heath care as self-administration could not be sensibly isolated from total process including prescribing and dispensing.	As per Riley FM in JP1 "Finkelstein J suggested in X that significant cost could be ascertained by a form of comparative exercise with the average health costs for Australians generally. There is no legislative requirement for that approach and nor do the authorities support it." The case presided over Finkelstein J is the reversed FCA case. Applicant was granted non-publication of name given medical condition.
Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182; [2005] FCA 1626; BC200509578	June 2002	Down Syndrome Described as 'mild'	Labour Agreement (Residence) (Class BV) (Subclass 855) Visa	Son	PIC 4005	Held: Application Granted MRT made error of law which precluded it from exercising jurisdiction according to law. The RMOC failed to assess the statutory criteria in 4005(c) by reference to a hypothetical person who had the actual level of applicants conditions The MOC misconceived the task because he "had not applied the proper test but had assessed [the applicant's] position on the basis of a person suffering from Down's Syndrome generally" [27]	His Honour Siopis J addresses question of "a construction of the Regulations to determine the proper test by which a MOC is to assess the matters referred to in Public Interest Criterion 4005 (c) of the Regulations" at 43 The applicant argued that the proper construction of the relevant statutory/regulatory scheme required the MOC to assess the specific nature and extent of the applicant's condition: "...and then apply the statutory criteria to a hypothetical person having that specific condition" [27]
Ramlu v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 195 FLR 203; [2005] FMCA 1735	Unstated	Report did not state which ailment caused failure to comply with Regulations	Unstated	Unstated	PIC 4005(c)	Held: Application Granted MRT was required to consider propriety of opinion when opinion challenges or appeared questionable. Failure to do so caused jurisdictional error.	Ramlu followed the test in Robinson
Triandafillidou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 181 FLR 302; [2004] FMCA 20; BC200400330	Original decision made 24 August 2001 MOC opinion dates 8 December 1999	Significant intellectual impairment and requires support and supervision	Special Eligibility (residence) (Class AO) Visa subclass 806 remaining relative	Primary	PIC 4005	Held: Application Dismissed Medical Officer complied with regulations and legal error not established.
Inguanti v Minister for Immigration and Multicultural Affairs [2001] FCA 1046; BC200104594	Original decision on 3 April 2001	Intellectual Disability with need for assistance with personal hygiene and activities of daily living	Preferential Relative (Migrant) (Class AY) Visa subclass 104	Primary	PIC 4005(c)	HELD: Decision or MRT set aside and matter remitted to MRT for re-determination MRT erred in failing to have regard to competing evidence,. This case endorsed Imad.	Psychologist report by Dr Cook was contrary to the opinion of Dr Pincus. Dr Cook wrote that applicant's behaviour was socially appropriate and he was able to manage his personal basic daily policing requirements. Very sympathetic judge, see [13] and [16]
Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011; BC200104366	23 July 1996	Applicant aged 72 at time suffered from severe cardiac dysfunction	Family (Residence) (Class AO)(Aged Parent) Visa, subclass 804	Primary Applicant	PIC 4005	Held: Application Dismissed Clause 4005 specifically directs medical officer not to take account of capacity of applicant's family to pay for her medical expenses,	Where applicant lives with daughter who was permanent resident and psychologically disabled and claimed to care for her and grandchildren [14] cited in Robinson re construction of PIC4005: One would expect that a medical officer would be able to assess the nature of disease or condition and its seriousness in terms of its likely future requirement for health care.
Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014; BC200104310:	24 March 1998	Down Syndrome with a mild intellectual disability	Former Resident (Migrant) (Class AR) Visa with family unit	Family member: Husbands son	PIC 4005	Held: Application refused No reviewable error in medical review officer opinion Whether opinion of medical review officer satisfied criteria for 'opinion' as prescribed in Reg. Where the applicant provided extensive, generally supportive, medical evidence	[38] and [46] - on whether a Dr needs to qualify the cost when determining significant cost and other matters of construction of 4005 'Dr having found medical eligibility for long term income support in the form of disability support pension, was entitled to form the opinion that the provision of such a pension would result in significant cost, without quantifying that cost" - [46]
Bui v Minister for Immigration and Multicultural Affairs (1999) 85 FCR 134; BC9905801	4 December 1995	Borderline Intellectual Functioning Applicant maintains independent life and has completed 9 years of education	Vietnamese [Special Assistance] (Class BK) Visa	Primary	PIC 4007(1)(c)(i)	Held: Appeal allowed Delegate acted on CMO based criterion narrow than required to address. Where the Medical Officer acted with an awareness of the restriction imposed by reg2.35B.	The court invited submissions on reg2.25B after the decision in Seligman found reg2.25B invalid. The appeal would have otherwise failed. Evaluative judgment of whether the cost to the Australian community or prejudice to others is 'undue' may import considerations of compassionate or other circumstances [47]
Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115; (1999) 55 ALD 374; (1999) 164 ALR 173; [1999] FCA 117; BC9903865	14 May 1996	Mild Intellectual Disability "borderline intellectual functioning." Psychological report assessed son as capable of training and acquiring skills but delayed in social and emotional development. Where report referred to earlier assessment and changes in son's development.	Business Skills (Migrant, Class AD, Subclass 128 (Senior Executive) Visa	Family Member: 24-Year-old Dependant son	Where report of CMO required under Migration Regulations stated applicant's son did not meet criteria for grant of visa sought on grounds his disability was of nature likely to result in significant cost to Australian community	Appeal by Minister for Immigration against orders of Federal Court remitting application for visa for further consideration. Appeal Dismissed Held: Court entitled to review CMO's decision where it exceeds its authority and has been acted upon by Minister in exercise of decision.	Trial Judge found error of law on the part of the Medical Officer in reference to long term disability support, which was in his view neither an aspect of health or a community service. Such support was held as not a cost to Australian Community. Applicants made proposals to avert risk of his son becoming a burden on taxpayer. Widely cited at 48-49 with respect to the defining and limiting attributes of the medical officers opinion. The court found an internal inconsistency between reg 2.25B and found that it was not authorised by s 505. 400(c) was amended following Seligman with an inclusive definition of "community services."
Minister for Immigration & Multicultural Affairs v Ma (1998) 82 FCR 455; (1998) 50 ALD 803; BC9801038	22 December 1994	Intellectual disability and associated congenital health problems	Parent (migrant) (Class AX) Visas	Daughter of applicant She was withdrawn from the application	PIC 4005	Applicant was Minister Held: Tribunal decision to Grant Visas set aside for further consideration. It is not possible for the Tribunal to be satisfied that it would be unreasonable to require a person to undergo assessment for the purposes of public interest criterion 4005 where the person has already undergone such as assessment.	Daughter was withdrawn from the application and the tribunal found that it would be 'unreasonable' to require daughter to be assessed and on that basis the visa should be granted. The Minister was the applicant in this case. The wording of the subclause has changed but Ma still cited by Tribunal in Choice 2018.
Manokian v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 632; BC9707003	23 February 1994	(unstated)	Aged Parent Visa (class 804) with son	Family Member: Son	PIC 4005	Application Dismissed: (i) The Tribunal does not have the power to review the opinion of the CMOs. (ii) The opinion of the CMOs did not amount to a decision to refuse to grant the visa. The visa was refused by the department. (iii) The primary decision-maker (the officer of the tribunal) had no power to go behind the certificate of the CMO that was before him and the Migration Act 1958 (Cth) (the Act) gave no further power to the review officer or the tribunal to go behind that certificate.	Appeal dismissed by the Review Tribunal on 28 June 1995.

AAT Decisions

Case Number and Reference	Year application was originally made	Type of Health Condition	VISA Category	Health Condition of Primary Applicant or Family Member	PIC C-Concern	Decision	Additional Comments
Punjani (Migration) [2023] AATA 3276 (20 September 2023)	7 January 2022	Severe functional impairment. Background of a B cell lymphoma affecting her brainstem. (Stroke 2019) Costs	Visitor (Class FA) visa – Subclass 600 (Visitor)	Primary (Son in Australia	PIC 4005	Held: Decision under review affirmed Referral to minister due to the potential risk of life if forced to travel	(in Australian Care Facility since 2019)
Mohammed Abdul Sayeed (Migration) [2023] AATA 1012 (19 April 2023)	2 March 2018	Unstated Condition to which the provision of health care or community services would be likely to result in a significant cost. Was improving with mainstream schooling.	Employer Nomination (Permanent) (Class EN) Visa Subclass 186 Cost of $470,178 in 2022 MOC	Son Non-migrating of this application	PIC 4007	Held: Remits the application for reconsideration with direction PIC4007 is met. Tribunal finding that probability of son applying for a visa is very low and therefore no undue cost	Original application included son as applicant.
2003609 (Migration) [2022] AATA 4227 (4 November 2022)	30 May 2019	HIV Positive	Employer Nomination (Permanent) (Class EN) Visa Subclass 186	Secondary: Husband	PIC 4007	Held: remitted for reconsideration	3 Applicants work in the health and community sector "significant weight to the fact that the stigmatisation of HIV status has reduced markedly...Australia remains one of a handful of Western nations to use HIV+ status as a reason to deny people migration rights" [22]
Singh (Migration) [2022] AATA 2706 (27 June 2022)	17 November 2015	Severe multiple myeloma (cancer of blood) Cost: $391,000 over 5 years Applicant evidence stated in "complete remission"	Contributory Parent (Migrant) (Class CA) Visa	Secondary - Spouse in India who who non-migrating	PIC 4005	Held: Decision to deny visa application affirmed	Applicant raise method of assessment (being from Aus to India ) did not indicate the stage of cancer and took into account information that was 14 months old Where mother of son wanted to get visa to assist with sons business in Australia
Gurung (Migration) [2022] AATA 784 (25 March 2022)	13 May 2017	Stable Chronic Myeloid Leukaemia (in remission) Costs: $424,200 RMOC: No undue prejudice	Employer Nomination (Permanent) (Class EN) Visas	Primary applicant	PIC 4007	Held: Remitted for reconsideration Finding: No undue cost	No functional impairment and continued full-time work in sector with skill shortage
Kashyap (Migration) [2022] AATA 1007 (8 March 2022)	26 September 2016	Down Syndrome Mild cognitive impairment	Employer Nomination (Permanent) visas subclass 186	Secondary applicant: Eldest daughter (Aged 12 in 2022)	PIC4007	Held: Application remitted with a direction that Applicant meets PIC4007 Finding that Australian community is unlikely to bear 'undue costs' and the evidence is 'compelling' in the sense referenced in Singh	Cases: Bui, Ramlu, Robinson, Singh RMOC calculated costs at $176,630 Applicant high income $155K per/annum Applicant very valued by employer and runs four McDonalds across TAS employing up to 150, it would be difficult for the applicant to transition back to home country in same role and applicant covers cost of daughter
Pham (Migration) [2021] AATA 3841 (23 September 2021)	11 January 2016	Advanced bowel cancer	Contributory Parent (Subclass 143) visa with family unit	Second applicant	PIC4005	Held: Decision not to grant Visa affirmed Correct test from Robinson/Ramlu applied by RMOC	Several requests for postponement made by applicant
Dang (Migration) [2021] AATA 3718 (13 July 2021)	3 September 2013	Mild Down Syndrome	Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme)	Applicants son	PIC 4007	Held : Remitted for reconsideration with the direction that the first applicant meets PIC 4007 Finding that granting visa not likely to result in undue cost or undue prejudice	MOC opinion cost would be 3.2 million over his lifetime Previously jurisdictional error found in FCC New RMOC found updated cost of $744,536 Applicants wealthy (own home outright and property in Vietnam they rent out)
Azim (Migration) [2021] AATA 1250 (15 March 2021)	15 January 2018	Moderate cognitive impairment from Autism spectrum disorder	Child (Residence) (Class BT) Visa	Primary Applicant	PIC 4007 (1)(c) and (2)(b)	Held: Remitted for reconsideration Finding that in the circumstances the visa would be unlikely to result in undue cost or undue prejudice	Mother an Australian Citizen approved on 14 December 2020 Lived in Australia for almost 6 years at the time. MOC opinion changed from about 4 mil to $800 from 2018 to 2020 (about 20% what it was)
1817242 (Migration) [2021] AATA 916 (4 March 2021)	3 April 2017	Moderate function impairment background of heart failure and mobility issues	Other Family (Residence) (Class BU) visa – Subclass 838 (Aged Dependant Relative)	Primary	PIC 4005	Held: Decision to deny visa affirmed Appropriate for referral to the Minister	Compassionate Circumstances and hardship to the existing Australian family unit with inadequate support available in home country
Shin (Migration) [2020] AATA 3841 (8 September 2020)	10 January 2014	Cerebral palsy Moderate to severe functional impairment	Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector)	Secondary applicant (daughter)	PIC4005	Held: Tribunal affirms decision not to grant visa Referred to Minister for consideration of intervention at [59]	Family in Australian since 2013 and daughter had been cared for without any government or community assistance
1615886 (Migration) [2020] AATA 1280 (9 April 2020)	7 January 2015	Moderate intellectual impairment MOC costs: $2.6 Million then updated to $216K	Employer Nomination (Permanent) (Class EN) visa – Subclass 186	Applicants daughter	PIC 4007	Held: Remitted for reconsideration with direction applicant meets PIC 4007 Finding costs are significant but not undue. Finding that there are considerations of compassionate and compelling circumstances.	High-income earning capacity to mitigate costs (gross annual $327,383)
1928904 (Migration) [2020] AATA 673 (9 March 2020)	22 August 2017	Asymptomatic HIV infection which is well controlled by antiretroviral medication but requires ongoing medication to remain in good health	Regional Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme)	Primary Applicant	PIC 4005	Held: Affirmed decision to deny visa	Application for review based off the policy change to significant cost threshold and time period for estimating costs and the availability of cheaper medicines.
1729745 (Migration) [2019] AATA 5188 (6 September 2019)	3 August 2016	Asymptomatic chronic viral Hepatitis B Applicant provided Dr reports indicated a cost: approximately $350 to $400 per year, rising to approximately $1,900 per year if first line anti-viral therapy is required.	Skilled Nominated (Permanent) visas	Applicants wife	PIC4005	Held: Remitted for reconsideration with a direction that applicant meets PIC4005	Criterion in Robinson and Ramlu was breached by MOC RMOC found PIC4005 met Follows Haque at [13] the Federal Circuit of Australia (FCCA) in Haque & Ors v Minister for Immigration and Annor [2015] FCCA 1765 ruled that although a decision maker is normally bound to accept the opinion of the MOC as to whether a person meets the relevant health criteria for the visa for which they have applied, the decision maker should only accept a MOC opinion that is properly formed and that is not based on significant mistaken facts;
1820734 (Migration) [2019] AATA 4119 (11 July 2019)	4 December 2014	Chronic viral Hepatitis B	Contributory Parent (Migrant) (Class CA) Visa	Primary	PIC 4005	Held: Decision to not grant visa affirmed Tribunal does not consider it appropriate to seek a breakdown of costs from the MOC because in cases where PIC 4005 is applicable and an adverse opinion is received from a MOC, the only issue for the Tribunal's consideration is whether the opinion of the MOC is authorised by the Regulations [33]	The applicant wanted a breakdown of costs from MOC
Harper (Migration) [2019] AATA 3956 (24 June 2019)	9 February 2009	Medical condition redacted. "applicant in excellent health with the exception of her [certain body part] which is incurable"	Parent (Migrant) (Class AX) visa subclass 103	Primary applicant	PIC4005	HELD: Decision affirmed The Tribunal is bound to assume the MOC as correct.	Applicant lived independently and raised 2 kids after condition
SALMA (Migration) [2019] AATA 1085 (21 May 2019)	17 March 2018	Moderate developmental delay associated with trisomy 21	Skilled (Provisional) (Class VC) Visa	Secondary Applicant	PIC 4005 Assessed against a period of one year and six months	Held: Affirms decision not to grant visa Finding RMOC opinion valid	Appeal Dismissed in FCA
OCHOA (Migration) [2019] AATA 2159 (12 April 2019)	27 September 2016	Autism spectrum disorder With significant learning difficulty RMOC opinion autism was moderate not mild	Regional Employer Nomination (Permanent) - subclass 187 (Regional Sponsored Migration Scheme) With family unit (3)	Applicants son (age 10 at time of decision)	PIC4005	Held: Tribunal affirms decision not to grant visa But, given the factual matrix that the applicants circumstances meet the criteria that there would be exceptional and other benefits to Australia...requests the case be brought to attention of Minister to consider discretionary powers under s351	Applicant arguments against RMOC [22] include on Robinson and "it would be contrary to public policy for the RMOC "to make a general notion that suffers of autism...will all fail the test."
1802513 (Migration) [2019] AATA 3354 (27 March 2019)	25 December 2016	Asymptomatic HIV infection with undetectable viral load	Regional Employer Nomination (Permanent) Visa	Primary	PIC 4005	Held: Decision affirmed to reject visa Ministerial criteria met and intervention requested	Significant cost to the Aus community in MOC opinion Strong compassionate circumstances with growing need for profession
1826279 (Migration) [2019] AATA 523 (4 March 2019)	16 October 2017	Condition redacted	Skilled Independent (Permanent) visa subclass 198	Primary	PIC4005 Resolved when further information provided	Held: Remitted for reconsideration with a direction applicant meets 4005	Further MOC opinion obtained following applicant medical opinion document evidence being served. MOC then approved PIC4005 based off new information. *Won't include further cases with similar facts
Calinao (Migration) [2019] AATA 1896 (22 February 2019)	12 September 2014	Severe chronic renal disease With likely kidney transplant needed MOC identified costs at $775,102	Regional Employer Nomination (Permanent) visas	Primary applicant	PIC4007	Held: Remitted application for reconsideration with the direction that the applicant meets PIC 4007 Finding that family well settled, two children attend school, would cause hardship to leave. Finding unlikely to result in undue cost or undue prejudice.	Applicant provided evidence that his brother has declared a preparedness to donate a kidney should it be required. Applicant already in Australia and working for 11 years and considered crucial to that business
1713724 (Migration) [2018] AATA 5285 (13 December 2018)	15 July 2014	Medical condition redacted	Contributory Parent (Migrant) (Class CA)	Secondary non-migrating spouse where withdrawal of application not made until adverse health findings	PIC 4005	Held: Affirmed decision to deny visa	Credibility issues including evidence divorce fabrication to strengthen visa outcome
Chen (Migration) [2018] AATA 3712 (17 July 2018)	10 March 2014	Redacted (described as chronic and permanent)	Contributory Parent (Migrant) (Class CA) visas.	Secondary applicant (3^rd Named)	PIC 4005	Held: Decision under review affirmed
Arora (Migration) [2018] AATA 3021 (12 July 2018)	16 June 2014	Down syndrome 'moderate cognitive impairment'	Contributory Parent (Temporary) (Class UT) visa – Subclass 173 (Temporary)	Secondary: son	PIC 4005	Held: Decision to reject affirmed	Self-represented
ESQUIBEL (Migration) [2018] AATA 2715 (22 June 2018)	31 May 2014	Advanced chronic renal disease May require renal transplant	Employer Nomination (Permanent) visas	Primary	PIC 4007	Held: Remits application for reconsideration	Strong support from community. Family willingness to provide transplant and to medical costs Slow progression of condition In Aus since 2011 as a roof plumber
KAUR (Migration) [2018] AATA 2704 (15 June 2018)	19 November 2015	Serve medical impairment MOC assessed costs in excess of $7 million	Child (Migrant) (Class AH)	Primary	PIC 4007	Held: Decision to deny visa affirmed Finding circumstances not compassionate or compelling enough to overcome significant cost	Child was in full custody of grandparents who became sick and then child changed from non-migrating applicant to migrating
Wang (Migration) [2018] AATA 2265 (7 May 2018)	11 March 2008	Condition redacted As per applicant medicals: "no signs of his condition worsening" "if remains stable would require 2 to 4 specialist visits per year with 4 x blood tests" ... "estimate of costs approx. $210 per month"	Parent (Migrant) (Class AX) visa – Subclass 103 (Parent)	Second applicant – in family unit of primary applicant (spouse)	PIC4005	Held: Decision to deny visa affirmed	Test in Robinson and Ramlu applied
Mayank (Migration) [2018] AATA 403 (1 March 2018)	21 January (unstated year) assuming 2016 as visa refused in 2017 about a year later	Severe functional impairment from Cerebral palsy	Child (Residence) Class BT (Subclass 802)	Primary	PIC 4007	Held: Finding that PIC 4007 is met Finding of no undue cost Finding that Australian citizens and permanent residents would be significantly affected	MOC finding of no undue prejudice
Prudenciado (Migration) [2018] AATA 1046 (21 February 2018)	26 August 2014	Redacted	Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme)	Child of applicant (6 years old)	PIC 4005	Held: Decision to deny visa affirmed Referral for Ministerial Intervention Finding that circumstances were exceptional as required by guidelines due to economic benefits
Choi (Migration) [2018] AATA 266 (14 February 2018)	10 July 2015	Chronic medical condition likely to be permanent (otherwise unstated)	Employer Nomination (Permanent) (Class EN) subclass 186 visa	Spouse	PIC4005	Held: The Tribunal affirms the decision not to grant the visa and does not refer the matter to the Minister under section 351 of the Act Matter not exceptional, unusual, compelling or compassionate enough (in like with Ministerial guidelines) to warrant referral to Minister.	Mrs Lee was a non-migrating family member who would remain in South Korea Statutory interpretation on the construction of subclause 1186.235(3) Member noted current evidence on the applicant's employment, the needs of the employer and potential hardship he would suffer if he returned to South Korea not included
Aris (Migration) [2018] AATA 125 (1 February 2018)	9 April 2015	Functional head injury resulting from a childhood head injury Requirement of ADL assistance and allied health therapies	Regional Employer Nomination (Permanent) visa with family unit	Applicants daughter	PIC4007(2)(B)	Held: Remit the application for re-consideration Direction that applicant meets PIC4007(2)(b) Finding that applicant has no intention to bring his wife and children to Australia	Applicant his wife and three children do not intent to migrate to Australia and did not apply Should the wife and family wish to come they would have to apply and again meet 4005/4007
1711132 (Migration) [2017] AATA 2822 (6 December 2017)	2009	Organ transplant in 2010	Skilled (Residence) (Class VB) visa	Primary applicant	PIC 4005	Held: Tribunal affirms the decision not to grant the applicant visa Decision not to refer the case to minister

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