Spouse Visa Refusal: Migration Tribunal Reasons

Matter Refused: Spouse Visa

This decision considered public interest criterion; significant cost to the Australian community in the areas of health care and community services; waiver; and undue cost to the Australian community.

The applicant (including child) applied for the Partner (Temporary) (Class UK) visa on the basis of the primary visa applicant’s spousal relationship with her Australian citizen husband. The immigration delegate refused to grant the visas because the child applicant did not satisfy public interest criterion (PIC) 4007 (pursuant to cl.820.224 of Schedule 2 to the Migration Regulations 1994) because her health condition (Down syndrome) would result in a significant cost to the Australian community in the areas of health care and community services. This is not a matter our firm handled.

A Medical Officer of the Commonwealth (MOC) assessed the child applicant’s condition as a significant cost estimated at $539 000 over her lifetime although the condition would be unlikely to prejudice the access to health care or community services of any Australian citizen or permanent resident.

The applicants were New Zealand citizens and had lived in Australia since 2002.

The primary visa applicant and her husband were employed, were assisted with the care of the child applicant through a network of friends and supporters as well as education and health services but had no family in either Australia or New Zealand.

The child applicant was about to finish school, would attend day programs receiving education in life skills for the foreseeable future and would be likely to be able to work in some form of disability enterprise.

The child applicant’s parents claimed they intend for her to live with them ‘until the grave’ and would not live in community group homes.

Held: Decision under review set aside.

Based on the MOC opinion, on appeal it was found the child applicant did not satisfy PIC 4007(1)(c) because she was a person who has a disease or condition such that the provision of health care or community services relating to that disease or condition would be likely to result in a significant cost to the Australia community.

In considering waiver of the PIC 4007(1)(c) requirements under PIC 4007(2), regard was had to Immigration Departmental policy. On review it was found a compelling circumstance that the child applicant’s father was an Australian citizen and that the visa applicants had the right to remain in Australia as New Zealand citizens.

Reliance was made on evidence from the child applicant’s doctors to find that the child applicant’s needs, now and in the foreseeable future and in terms of children with Down syndrome, to be on the low side and that her health had improved since arriving in Australia.

The following was considered: average life expectancy for those with Down syndrome; the possible contribution the child applicant may make to the economy by working; the contribution of her parents through their employment and the family’s private support networks.

Finally, as a compassionate factor, the possible impact on the child applicant of returning to New Zealand was considered.

Accordingly, it was held that the granting of the visas would be unlikely to result in undue cost to the Australian community in light of the compelling circumstances, the likelihood that the actual medical, health and other costs to the Australian community of the child applicant’s needs would not be as great as anticipated, the potential for the child applicant to contribute to the Australian community, her parent’s current and future contributions and the compassionate factor.