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| Case Number and Reference | Year application was originally made | Type of Health Condition | VISA Category | Health Condition of Primary Applicant or Family Member | PIC C-Concern | Decision | Additional Comments |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 (3rd 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. 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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