• PIC 4007(2)(b) for the purposes of cl 461.223 of Schedule 2 to the Regulations.

MIGRATION - New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa - Subclass 461 - spouse of New Zealand citizen - health criterion - Medical Officer of the Commonwealth opinion required - determined treatment is significant cost to Australian community - prejudice to existing citizens and residents to life-preserving health services currently in short supply - public interest criterion not satisfied - health insurance and husband cover costs - insubstantial treatment in home country - close family, social, emotional and community ties to Australia - strong compelling and compassionate circumstances - applicant will die within 14 days if dialysis ceased - decision under review remitted

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 461.223, Public Interest Criterion 4007

Bui v MIMA [1999] FCA 118; (1999) 85 FCR 134

Drake v MIEA (1979) 24 ALR 577

Plaintiff M64/2015 v MIBP [2015] HCA 50

Ramlu v MIMIA [2005] FMCA 1735

Robinson v MIMIA [2005] FCA 1626; (2005) 148 FCR 182

1. This is an application for review of a decision made by a delegate of the Minister on 14 April 2022 to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant applied for the visa on 12 November 2020. The delegate refused to grant the visa as the applicant did not satisfy cl 461.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the health criteria in Public Interest Criterion ('PIC') 4007 of Schedule 4 to the Regulations was not met.
3. The applicant appeared before the Tribunal on 4 December 2025 to give evidence and present arguments. The applicant was represented in relation to the review.
4. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.

1. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4007 as required by the criteria for the grant of the visa. Public Interest Criterion 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances. The applicant in this case has severe chronic renal disease requiring regular dialysis.

Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

1. Clauses 4007(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community.
2. Clause 4007(1)(c) requires applicants (unless they are a minor born in Australia and ordinarily resident in Australia) to be free from a disease or condition which would be likely to require health care or community services or which would meet the medical criteria for provision of a community service during the specified period; and provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services.
3. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 2.25A requires the Tribunal to seek the opinion of a MOC unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 2.25A(3).
4. For specified temporary visas, certain specified health care and community services are excluded from this consideration: PIC 4007(1B). The requirement may also be waived in certain circumstances.
5. In this case the temporary visa the applicant is seeking is not specified in Legislative Instrument IMMI 2016/067. As such the health care and community services listed in the instrument IMMI 11/073 are not excluded from consideration.
6. In determining whether a person meets PIC 4007(1)(a), (b) or (c), reg 2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless: the application is for a temporary visa and there is no information known to Immigration to the effect that the person may not meet those requirements; or the application is for a permanent visa and made from a specified country and there is no information known to Immigration to the effect that the person may not meet those requirements. Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 2.25A(3).

1. On the evidence before the Tribunal, a MOC opinion is required. As noted above, the Tribunal must take the MOC opinion as correct, but must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA [2005] FCA 1626; (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.
2. On 13 July 2021, in a Form 884, a Medical Officer of the Commonwealth (MOC) assessed the applicant and provided an opinion that she did not satisfy PIC 4007(1)(c)(ii)(A) and PIC 4007(1)(c)(ii)(B) because of her severe chronic renal disease. The MOC opinion relevantly stated that:

Form and severity of the applicant's condition: the applicant has severe chronic kidney disease of unspecified cause but on a background of hypertension and diabetes mellitus, with renal impairment of a severity that regular dialysis is required. A person with this condition would be likely to require renal replacement therapy during the proposed period of stay. Provision of services to a hypothetical person with the applicant's condition: A hypothetical person in Australia with the same condition as the applicant, at the same severity, would be likely to require long term specialist health care services, including but not limited to renal replacement services. I consider that the provision of health care services to the hypothetical person in the circumstances defined above would also be likely to result in a significant prejudice to access to the Australian community in the area of health care. This is because dialysis, based on advice from the Department of Health, is currently a service in short supply; that is, there are already insufficient resources available to meet current national demand and failure to obtain required access to this service would be likely to seriously disadvantage current Australian citizens and permanent residents. This condition is likely to be Progressive.

I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.

Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and /or community services and prejudice the access of an Australian citizen or permanent resident to health care or community services.

In preparing this opinion, I have had regard to the information available to date concerning the applicant, including, but not limited to the visa medical assessment dated 12 July 2021.

1. In a health waiver information form of the same date, the MOC assessed that the likely cost to the Australian community of the services identified in the Form 884 as set out above was $425,650.
2. On 3 August 2021, the delegate wrote to the applicant inviting her comment on the MOC's assessment that she did not meet the health requirement for the grant of the visa. On 20 October 2021 the applicant responded to the effect that the delegate should consider that her medical condition will not:
   • result in a significant cost to the Australian community in the areas of health care and community services; or
   • prejudice the access of an Australian citizen or permanent resident to health care or community services.
3. In relation to the cost to the Australian community, it was submitted that:
   • Her private health insurance fully covered the cost of her treatment and any further costs incurred such as pharmacy and outpatient costs were paid from her husband's funds;
   • The applicant had never had any outstanding debts to Northern Hospital Epping over the seven years she had been a patient at that hospital and the provision of care to the applicant would not result in significant costs to the Australian community;
   • There were no facts to indicate that others under the Bupa health insurance have been disadvantaged due to the applicant's ongoing financial obligations;
   • Due to the applicant's ineligibility for renal transplant because of her status as a temporary visa holder, and the fact that her condition is life-threatening, ceasing treatment was not an option but it may be possible to reduce the cost of her treatment by undertaking alternative treatments and the applicant was willing to opt for those treatments if required.
4. In relation to whether the provision of the applicant's care would prejudice the access of an Australian citizen or permanent resident to health care or community services, it was submitted that:
   • During the seven years the applicant had been receiving treatment through Northern Hospital Epping, there had not been any reports or other evidence that there is a shortage of dialysis equipment in Australia;
   • Therefore any current shortage of dialysis equipment was not an ongoing issue but one that had recently arisen, most likely due to the effects of COVID-19 on the health system given that a quarter of hospitalised patients suffering from COVID-19 may develop acute kidney injury and require dialysis;
   • The current shortage is most likely a temporary rather than a prevalent or ongoing issue, and will no longer pose an issue once the COVID-19 pandemic abates;
   • Rejecting the applicant's visa based on a temporary situation, was disproportionate and her willingness to undergo treatments at home means that she would not be exacerbating the current shortage, but rather allowing other patients in the hospital to receive that dialysis treatment in her place.
5. It was also submitted that as the spouse of a New Zealand citizen who has been residing in Australia for over 10 years, the applicant has no immediate rights to travel to and reside in New Zealand without her husband and children, and her only option would be to return to her home country of Samoa where she is likely to experience insubstantial treatment that would, worsen her health conditions and increase her mortality rate.
6. In particular it was noted that Chronic Kidney Disease (CKD) is considered the fourth major cause of death in Samoa compared to the seventh leading cause of burden among those aged 85 and over in Australia and the applicant's condition would be more difficult to treat because she also suffers from diabetes and hypertension. It was submitted that Samoa's status as a developing country has heightened its infrastructural and financial burden, thus substantially limiting accessibility to treatment underscoring the limitations of the Samoan health care system, which will not be able to adequately provide for her care. The extremely limited availability of treatment and the time it would take to make such arrangements, if even available, to allow her to receive the treatment she needs, will result in her "prompt death in a period likely measured in approximately five (5) to fourteen (14) days" and denying the Applicant's visa application would be extremely unconscionable, and would worsen her condition even to the point of death.
7. Attached to those submissions were:
   • Australian birth and citizenship certificates for the applicant's children, Laugutu Danielle Bruce and Lolua Joseph Bruce;
   • New Zealand passport for Caesar Toeupu Bruce;
   • Maelisala Bruce's Payslip dated 6 October 2021;
   • Evidence of Current Health Insurance dated on 5 March 2021;
   • Northern Hospital PBS Prescription Record Form dated 15 September 2020;
   • Copy of the applicant's Samoan Passport;
   • A report of Dr David Langsford dated 15 September 2020, confirming that the applicant has been a patient of Northern Renal Service since 2015 and that she has end stage kidney disease and is dependent on regular haemodialysis, a life sustaining treatment. Her condition remains stable due to ongoing compliance with treatment of haemodialysis three times per week, which will continue as she is unable to access renal transplantation due to being ineligible for dialysis;
   • A report of Dr Tim Pianta from Northern Health dated 13 September 2021, outlining alternative and less expensive treatment options including home-based haemodialysis or peritoneal dialysis. That report states that in the author's opinion, haemodialysis and dialysis more generally are not truly finite resources, rather it is the cost burden of these services which is the fundamentally restrictive issue. As the applicant is medicare-ineligible, she has maintained payment of her medical expenses via insurance and significant out of pocket expenses. Any inability to access dialysis would result in death in 5 - 14 days;
   • A report of a social worker from Northern Health dated 15 September 2020, stating that the applicant has been a patient of Northern Health Renal Service since 2015 and that she suffers from End Stage Kidney Disease, Type 2 diabetes and hypertension. That report states that she requires dialysis three times per week, at a cost of $5,400 or $280,800 over a twelve month period, the costs of which are covered by her private health insurance. She also incurs significant costs for pharmacy and outpatient appointments which she pays for herself, noting that her pharmacy bill in 2019 was $684.86 and $467.62 in 2020 to September 11.
8. The Department's file indicates that the matter was referred back to the MOC for a further opinion on the basis of the medical documents submitted by the applicant. On 24 November 2021, a Medical Officer of the Commonwealth (MOC) again assessed that the applicant did not satisfy PIC 4007(1)(c)(ii)(A) and PIC 4007(1)(c)(ii)(B) because of her severe chronic renal disease for essentially the same reasons set out in the MOC opinion dated 13 July 2021, save that the applicant's condition was now reported as stable. The new MOC opinion noted that regard was had to the further information from nephrologists Dr Tim Pianta and Dr David Langston.
9. Ultimately that new information did not change the MOC's opinion that the provision of health care and/or community services would likely result in a significant cost to the Australian community and prejudice the access of an Australian citizen or permanent resident to health care or community services or substantially alter the MOC's assessment of the cost of that those services at $425,500 (as opposed to the earlier assessment of $425,650).
10. At hearing the applicant agreed with the MOC's opinion that she required ongoing dialysis for her severe chronic renal disease and gave evidence that there had been no significant change to her health condition since the MOC opinion in 2021, that she continued to have dialysis three times a week at Northern Hospital and that BUPA continues to cover the full cost of that treatment.
11. I am satisfied that the most recent MOC opinion, dated 24 November 2021, is a valid opinion and the MOC applied the correct test in forming the opinion. I am satisfied that the MOC has used the correct period for assessment, which is from the date of the visa application for a period of 5 years for a temporary residence application (regardless of the costs actually incurred during that period or whether part of that period has now elapsed).
12. The MOC was satisfied that the applicant's condition is likely to be permanent and would result in undue cost to the Australian community in the areas of provision of health care and/or community services. Furthermore, the MOC concluded that the grant of the visa would likely cause a significant prejudice to access of an Australian citizen or permanent resident to health care. The MOC found that the applicant does not meet PIC 4007(1)(c)(ii)(A) and PIC 4007(1)(c)(ii)(B).
13. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1)(c).

Should the requirements of PIC4007(1)(c) be waived?

1. The requirement in PIC 4007(1)(c) to be free of a disease or condition that would impact on health or community services, may be waived if among other things, the decision maker is satisfied that the granting of the visa would be unlikely to result in either 'undue cost' to the Australian community or 'undue prejudice' to the access to health care or community services of an Australian citizen or permanent resident: 4007(2).
2. The evaluative judgment of whether the cost to the Australian community or prejudice to others is 'undue' may import considerations of compassionate or other circumstances:

It may be to Australia's benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a "compelling" character, not included in the "compassionate" category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be "undue" there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed "compelling circumstances" may properly have a part to play.[1]

1. Department policy as set out in the Procedural Instructions provides guidance on factors that may be relevant to this, including: the need for, and availability of, a live organ donor; an ability to access private health treatment; close family, social, emotional and community ties to Australia; the impact on any Australian citizen minor children; occupational skills of the applicant or family members; and the potential contribution to Australia by the applicant or family members.[2]
2. In this case the applicant is unable to access the organ transplant list because of her visa status and there is no evidence to indicate the availability of a live organ donor. She has been accessing dialysis paid for by her private health insurer since 2015 and this, together with the family's direct payments of other costs of her medical care, has mitigated the costs to the Australian community.
3. The applicant's husband and three minor children are all Australian citizens and she is the primary care giver for her children, two of whom are still at school and the third of whom has finished only this year and will be studying at TAFE next year. Her husband maintains full time employment in a warehouse, where his hours vary and sometimes include evenings and nights. The applicant has been resident in Australia since 2003 and the family has strong ties to their church community and the Tribunal is satisfied she maintains close family, social, emotional and community ties to Australia.
4. The medical evidence before the Tribunal indicates that the applicant will die within 5 - 14 days of ceasing dialysis and country information cited in the submissions made to the delegate indicates that Samoa's status as a developing country substantially limits accessibility to long term heomodialysis treatment. For all of the above reasons, the Tribunal is satisfied that there are strong compelling and compassionate circumstances for the grant of the visa.
5. Department policy also provides that 'prejudice to access' is identified when the applicant's medical condition would be likely to prejudice the access of Australian citizens and permanent residents to health care and community services that are currently in short supply. The Guidelines identify dialysis as such as service, both as at the time of the visa application and as at the time of the Tribunal's decision, and go on to identify factors specifically referable to an applicant requiring dialysis:

If the MOC has identified the applicant is likely to require dialysis, favourable consideration may be given if documentary evidence has been provided that the applicant:

• has a demonstrated history of accessing, and of having the financial capacity to continue accessing dialysis at a private clinic; or
• has Private Health Insurance which will cover the cost, and has a demonstrated history of accessing dialysis at a private clinic; or
• has reached an agreement with a Public Hospital who has agreed to provide dialysis to the applicant under the reciprocal health care agreement between the applicant's home country and Australia.

1. In the decision record, the delegate acknowledged that the applicant holds private health insurance which will cover the cost of dialysis and accepted the specialist letters from her treating nephrologists' advising that she had accessed dialysis privately since 2015.
2. However the delegate considered that under the Health Requirement Policy Instruction, favourable consideration can only be where the waiver applicant has a demonstrated history of accessing dialysis at a private clinic, or at a public hospital who has agreed to provide dialysis to the applicant under the reciprocal health care agreement between the applicant's home country and Australia. The delegate considered that as there is no reciprocal health care agreement in place between Samoa and Australia, the delegate was unable to give weigh the applicant's private health insurance alone as a mitigating factor. The delegate concluded that waiving the health requirement in this case would be likely to seriously disadvantage Australian citizens and permanent residents to life-preserving health services currently in short supply.
3. In considering the role that the Department's Procedural Instructions should play in the Tribunal's decision, I note that absent a statutory duty or binding direction, the Procedural Instructions are not binding on this Tribunal which must ensure that any policy or guidelines are consistent with the law and not applied inflexibly. Nor is the Tribunal able to abdicate its function of determining the correct or preferable decision by merely determining whether the decision made conformed with relevant government policy.[3]
4. That said, proper application of policy is desirable to promote consistency in decision-making as the merits of an application will not always adequately be considered by reference to the circumstances of an individual applicant.[4] I consider that is particularly the case when considering the application of a Public Interest Criterion such as the health criterion.
5. The applicant does not have a history of accessing dialysis at a private clinic, because although her private health insurance would cover such treatment she has been unable to locate one in the outer north western suburbs of Melbourne. She maintains private health insurance which covers the cost of accessing dialysis at the Northern Hospital and has done so for approximately ten years. It is agreed that there is no reciprocal health care agreement between the applicant's home country of Samoa and Australia.
6. I give weight to the opinion of the applicant's treating doctors to the effect that haemodialysis and dialysis more generally are not truly finite resources, rather it is the cost burden of these services which is the fundamentally restrictive issue. In this case there is no cost burden to the Australian community because the full cost of the applicant's treatment are met by her private health insurer and her husband. I give weight as well to the applicant's evidence that to her knowledge there are no private clinics in her area where she could obtain dialysis. Given that she requires dialysis three times a week for several hours at a time, I consider that requiring the applicant to travel long distances to obtain that treatment from a private clinic to be unreasonable.
7. Documents submitted to the Tribunal indicate that as at the time of the Tribunal's decision, the applicant continues to hold private health insurance and that she continues to receive dialysis 3 times a week at the Northern Hospital Renal Service. A letter from Northern Health dated 9 December 2025 advises that the applicant's private health insurance continues to cover the majority of her health care expenses and she self-funds those expenses not covered by her private health insurance. It records that the applicant's health remains stable and she only utilises the services of Northern Health for maintenance haemodialysis and associated medications.
8. In all of the above circumstances, I do not consider the Department's Procedural Instructions should be applied in an inflexible manner as to exclude the applicant from the waiver merely because she receives her privately funded treatment in a public hospital.
9. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice within the terms of PIC4007(2)(b). Therefore PIC 4007(1)(c) may be waived subject to the applicant satisfying all other requirements for the visa.

1. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for the visa.

1. The Tribunal sets aside the decision under review and remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa:
   • PIC 4007(2)(b) for the purposes of cl 461.223 of Schedule 2 to the Regulations.

Migration Regulations 1994

(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

(i) must undertake any medical assessment specified in the instrument; and

(ii) must be assessed by the person specified in the instrument;

unless a Medical Officer of the Commonwealth decides otherwise; and

(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

(a) is free from tuberculosis; and

(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

(c) unless the applicant is a minor born in Australia and is ordinarily resident in Australia, subject to subclause (2) - is free from a disease or condition in relation to which:

(i) a person who has it would be likely to:

(B) meet the medical criteria for the provision of a community service;

(ii) the provision of the health care or community services would be likely to:

(A) result in a significant cost to the Australian community in the areas of health care and community services; or

(B) prejudice the access of an Australian citizen or permanent resident to health care or community services;

regardless of whether the health care or community services will actually be used in connection with the applicant; and

(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment - has provided the undertaking.

(a) for an application for a permanent visa - the period commencing when the application is made; or

(b) for an application for a temporary visa:

(i) the period for which the Minister intends to grant the visa; or

(ii) if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph - the period commencing when the application is made.

(a) the applicant applies for a temporary visa; and

(b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A)(b)(ii);

the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

(2) The Minister may waive the requirements of paragraph (1)(c) if.

(a) the applicant satisfies all other criteria for the grant of the visa applied for; and

(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:

(i) undue cost to the Australian community; or

(ii) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

[1] Bui v MIMA [1999] FCA 118; (1999) 85 FCR 134 at 47

[3] Drake v MIEA (1979) 24 ALR 577 at 589-591.

[4] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [68].