• Public Interest Criterion 4007(1)(c) for the purposes of cl 309.228 of Schedule 2 to the Regulations.

MIGRATION - Partner (Provisional) (Class UF) visa - Subclass 309 (Spouse (Provisional)) - health criteria - secondary applicant child's moderate intellectual impairment - significant cost to Australian community - education, health care and community services - opinions of medical officer of commonwealth as at time of application - most recent assessment taken as correct - language and social development - waiver - passage of time and age at time of decision - some costings no longer apply and others will apply for only one or two years - mitigation of costs - medical insurance and sale of properties and cars - work qualifications, skills and experience, and job offers - financial, educational and practical support from extended family, friends and registered charity - adverse impact on two Australian citizen children - country information - conditions in home country and local area - decision under review set aside and remitted

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), r 2.25A(3), Schedule 2, cls 309.228, 309.323, Schedule 4, criterion 4007(1)(c)(ii)(A), (1A)(a), (2)

Bui v MIMA [1999] FCR 118

Ramlu v MIMIA [2005] FMCA 1735

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

1. This is an application for review of decisions made by a delegate of the Minister on 24 October 2022 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicants applied for the visas on 2 August 2019. The delegate refused to grant the visa on the basis that the first named visa applicant, Kenyan national Mrs Ruth Wamuyu Karani, did not satisfy cl 309.228 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the second named application, her son Jeremiah Karani Wamuyu, did not meet the health criteria in Public Interest Criterion (PIC) 4007(1)(c) of Schedule 4 to the Regulations because the cost for treatment of his moderate intellectual impairment condition would be likely to result in a significant cost to the Australian community in the areas of health care and community services and a waiver of this requirement was not considered appropriate.

1. The visa applicants were sponsored for Partner (Provisional) (Class UF) visas by their sponsor, Australian citizen Mr Shem Haran, who has lived in Kenya for nearly 12 years. Mr Haran is the husband of Mrs Karani and the step-father of now 13-year-old Jeremiah Wamuyu. Mrs Karani and Mr Haran (hereinafter referred to as the couple) have 2 children who were born to the couple in Nairobi following their marriage there on 13 June 2017. Mrs Karani gave birth to the couple's daughter Miss Hooba Hoo Allahan Haran on [Date] and their son Toobia Abishai Haran on [Date]. Evidence of their daughter's Birth Certificate was lodged with the Department. A copy of Toobia Haran's Birth Certificate has been provided to the Tribunal and will be forwarded to the Department. Both Hooba Hoo Allahan Haran and Toobia Abishai Haran are Australian citizens as confirmed by documentation provided to the Tribunal, copies of which will be forwarded to the Department.
2. Although Mr Haran worked in the building industry and maritime industry in Australia, he has been in Nairobi since 18 December 2013 working with poor and underprivileged Kenyans. As explained by Mr Haran during the hearing, his work as a volunteer Counsellor and Facilitator with Anglican Catholic Church Outreach & Social Services Ltd (ACCOSS) in Kenya has engaged his skills as a social worker and teacher in addition to passing on his building, welding and carpentry skills. Mrs Karani also works as a volunteer with ACCOSS. The couple told the Tribunal that accommodation and their basic living requirements, including medical support, have been provided to the family through ACCOSS as well as by ongoing donations from family and friends in Australia.
3. Information in the Department's file confirms that Jeremiah Wamuyu was the subject of 2 opinions made by a Medical Officer of the Commonwealth (MOC). The first opinion was dated 9 September 2019 (the First MOC Opinion) and it confirms that Jeremiah Wamuyu does not satisfy PIC 4007(1)(c)(i)(A) of Schedule 4 to the Regulations because he has mild intellectual impairment manifest as below expectations in language and mathematical activities at school. The First MOC Opinion states that he would need special education services and disability services which, together, would likely result in a significant cost to the Australian community of $293,000.
4. Thereafter, the couple obtained a second MOC opinion on 13 August 2021 (the Second MOC Opinion) which states that Jeremiah Wamuyu does not meet PIC 4007(1)(c)(ii)(A) of Schedule 4 to the Regulations on the basis that he has a medical condition - moderate intellectual impairment - which would be likely to require health care or community services during the period of his proposed permanent stay in Australia and that provision of those healthcare and/or community services would likely result in significant cost to the Australian community totalling $776,810. As noted above, this led to refusal of the Subclass 309 visa applications of Jeremiah Wamuyu and, as a consequence, that of his mother Mrs Karani.
5. Following refusal of the Subclass 309 visa applications of his wife and step-son, Mr Haran sought review of the delegate's decision in the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
6. The Tribunal wrote to Mr Haran pursuant to s 359A of the Act on 15 April 2025 and invited him to comment on the information in the Second MOC Opinion that Jeremiah Wamuyu does not meet PIC 4007(1)(c) of Schedule 4 to the Regulations. Mr Haran sought an extension of time to respond to the Tribunal's s 359A request noting that he and his wife are preparing documents and reports to support an updated MOC assessment given the passage of time since the Second MOC Opinion and based on their view that Jeremiah's condition has improved. He also noted that, in the event that a new MOC assessment still determines that the cost to the Australian community is significant, the couple intend to seek a waiver of the requirements in PIC 4007(1)(c).
7. On 22 May 2025, a Review Medical Officer of the Commonwealth (RMOC) issued an updated opinion (the Third MOC Opinion) confirming that Jeremiah Wamuyu has been assessed with moderate intellectual impairment and, in line with PIC 4007, he has been assessed as a 7-year-old person to reflect his age at the time of application on 2 August 2019. As such, the estimated total cost of healthcare and/or community services for supported education, Commonwealth disability services and early intervention services would be $904,060.
8. The Tribunal wrote to Mr Haran on 27 May 2025 pursuant to s 359A of the Act inviting comments on the Third MOC Opinion. An extensive range of documentation was provided in response to the Tribunal's s 359A letter including a completed Health Waiver Form together with information to address the appropriateness of a waiver of the PIC 4007 requirement. Following review of documentation submitted, Mr Haran and his wife were invited to attend a hearing on 8 July 2025.

1. The review applicant Mr Haran and his wife Mrs Karani appeared before the Tribunal on 8 July 2025 to give evidence and present arguments by way of MS Teams videoconference given their current location in Nairobi, Kenya. Evidence provided at the hearing is discussed below.
2. The Tribunal acknowledged the extensive documentation submitted prior to the hearing and the couple's request that consideration be given to the appropriateness of a waiver of the PIC 4007 requirements in this case. Oral evidence was provided by the couple regarding the basis of their request for the Tribunal to consider the appropriateness of a waiver. They were invited to submit further documentation after the hearing, which they did. The full nature of documentation provided to address the appropriateness of a waiver of the PIC 4007 requirements in this case is set out below.
3. For the following reasons, the Tribunal has concluded that the decision under review should be set aside and the matter be remitted for reconsideration.
4. The Tribunal acknowledges it has significantly more information than that which was available to the delegate at the time of their decision including not only documentary evidence provided prior to and after the hearing (approximately 800 pages) but also oral evidence at the hearing.

1. The issue in this review is whether the second named visa applicant, Jeremiah Wamuyu, meets PIC 4007 as required by the criteria for grant of the visa. Relevant provisions of the Regulations referred to in this decision including PIC 4007 are extracted in the Attachment to the decision. In summary, PIC 4007 requires the applicant, in certain circumstances, to undergo a medical assessment and to be free of certain diseases or conditions that may impact the Australian community. This last requirement may be waived in certain circumstances.
2. In this case, the delegate found that, having regard to the Second MOC Opinion, Jeremiah Wamuyu did not satisfy PIC 4007 on the basis of his being a person with moderate intellectual impairment which would likely require health care or community services that would likely result in a significant cost to the Australian community.
3. Limited documentary evidence was provided to the delegate to consider waiver of the PIC 4007 requirement and, after considering available information, the delegate refused Jeremiah Wamuyu's Subclass 309 visa application as the secondary applicant on the basis that he did not meet cl 309.323 of Schedule 2 to the Regulations. Consequently, the delegate also refused the Subclass 309 visa application of his mother, the primary applicant Mrs Karani, on the basis that she did not meet cl 309.228 of Schedule 2 to the Regulations as the health requirement is a 'one fails, all fail' criterion.

Is Jeremiah Wamuyu free from relevant diseases or conditions: PIC 4007(1)(a),(b),(c)?

1. Clauses 4007(1)(a) and (b) of Schedule 4 to the Regulations require an applicant to be free of certain diseases or conditions that may result in the applicant being a threat to public health in Australia or a danger to the Australian community.
2. Relevantly, cl 4007(1)(c) requires an applicant 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) of Schedule 4 to the Regulations, reg 2.25A requires the Tribunal to seek the opinion of a MOC unless certain exceptions apply, none of which are relevant in this case.
4. Where an opinion of a MOC is required, the Tribunal must take it be correct: reg 2.25A(3) of the Regulations.

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 it 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. The MOC's opinion must identify the medical condition to which the PIC has been applied, and the form or level of the condition suffered by the applicant and, further, 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 9 September 2019, Jeremiah Wamuyu was assessed by a MOC in the First MOC Opinion as not satisfying PIC 4007(1)(c)(ii)(A). As noted above, there have been 2 subsequent assessments made in respect of Jeremiah Wamuyu. The Tribunal must have regard to the most recent assessment to determine whether Jeremiah Wamuyu meets the health requirement.
3. The Tribunal has considered Third MOC Opinion and is satisfies it correctly identifies Jeremiah Wamuyu's medical condition as well as the level of severity of his condition. It is also satisfied that the MOC has correctly applied the statutory criteria by reference to a hypothetical person suffering the same level or severity of the medical condition experienced by Jeremiah Wamuyu. Accordingly, the Tribunal is satisfied that the MOC has applied the correct test and it takes the Third MOC Opinion to be correct.
4. The Third MOC Opinion expressly states that, for the purposes of giving the updated opinion and in line with PIC 4007, Jeremiah Wamuyu was assessed as a 7-year-old person to reflect his age at the time of visa application (2 August 2019). It acknowledges evidence considered in the First MOC Opinion as well as the Second MOC Opinion and the evidence provided in a report from a Clinician at Patrick Health Care Centre dated 12 May 2025, a school report from teacher D Wanyende dated 30 April 2025 and a report from Ngando School Headteacher Nancy Isalano (undated, but referencing the report from Diana Wanyende). The Third MOC Opinion notes that, although relatively independent in self-care, Jeremiah Wamuyu requires interventions to assist with language and social development as well as educational support and he is likely to require long-term disability support services. It assesses Jeremiah Wamuyu as having 'moderate intellectual impairment'. The Third MOC Opinion states that a hypothetical person in Australia with the same condition as Jeremiah Wamuyu, at the same severity, would likely require 'long-term support including but not limited to educational support and disability support services'. The condition is 'likely to be permanent'.
5. Further, the Third MOC Opinion states that the condition is likely to result in a significant cost to the Australian community in the areas of health care/or community services at an estimated total cost of $904,060 on the basis that he would likely require health care or community services as set out in Table 1 below:

Table 1 - Jeremiah Wamuyu's likely required health care or community services (as at the time of visa application) for a 7-year-old

Supported Education to age 16. Cost estimate referencing Disability

Services NfG, May 2024 including but not limited to Scenario 4.

Commonwealth disability services - $32,120.00 x 7.0 Years

Carer Payment/Allowance/Subsidy with Disability Assistance Payment

to age 15 with 2 year wait. Cost estimate referencing Disability

Services NfG, May 2024 including but not limited to Scenario 4.

Commonwealth disability services - $31,120.00 x 1.0 Years

Carer Payment/Allowance/Subsidy age 16. Cost estimate referencing Disability Services NfG, May 2024 including but not limited to Scenario 4.

Early intervention services - $35,700.00 x 2.0 Years

Amended (weighted) mean NDIS budgets based on Participation Data at 31 March 2025, Intellectual Disability (moderate, age 7-8).

Commonwealth disability services - $27,300.00 x 6.0 Years

Amended (weighted) mean NDIS budgets based on Participation Data at March 2025, Intellectual Disability (moderate, age 9-14).

Commonwealth disability services - $49,700.00 x 2.0 Years

Amended (weighted) mean NDIS budgets based on Participation Data

at March 2025, Intellectual Disability (moderate, age 15-16).

1. Consistent with current immigration policy set out in the Procedures Advice Manual (PAM 3), the threshold for the level of costs to be regarded as 'significant' is $86,000. As required by PIC 4007(1A)(a) of Schedule 4 to the Regulations, the RMOC calculated the total cost of healthcare or community services at $904,060 for the period commencing when the visa application was made on 2 August 2019 at which time Jeremiah Wamuyu was 7 years old. Based on the assessment set out above, the RMOC concluded in the Third MOC Opinion that Jeremiah Wamuyu does not satisfy PIC 4007(1)(c)(ii)(A) of Schedule 4 to the Regulations.
2. Accordingly, based on the Third MOC Opinion, Jeremiah Wamuyu does not satisfy PIC 4007(1)(c).

Should the requirements of PIC 4007(1)(c) be waived?

1. As noted above, 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': PIC 4007(2).
2. The evaluative judgment of whether the cost to the Australian community or prejudice to others is 'undue' may import consideration of compassionate or other circumstances: Bui v MIMA [1999] FCR 118 (Bui's case) at [47]. Over and above the consideration of the likelihood that cost or prejudice will be 'undue', there is also the discretionary element of the Ministerial waiver. Within that discretion, compassionate circumstances or compelling circumstances may be relevant and may properly have a part to play: Bui's case at [47]. Immigration policy provides guidance on the exercise of this discretion. Policy states that, given the broad range of discretionary considerations which can be taken into account, the individual circumstances of the particular applicant need to be considered in coming to a conclusion about whether the granting of the visa would be unlikely to result in undue cost or undue prejudice to the access to health care or community services by an Australian citizen or permanent resident.
3. PAM 3 sets out factors that may be relevant to consider whether a waiver is appropriate. Broadly speaking, in the circumstances of this case, these factors are:
   • the capacity to mitigate the potential costs such as an ability to access resources involved in accessing private medical treatment including: income, assets and, savings; and, available support from family or community groups;
   • the sponsor's family links to Australia and the impact on family members including minor children if a decision not to waive is made;
   • the occupational skills of the applicant or the sponsor including whether they have occupational skills in high demand such as skills on the National Skills Commission's latest Skills Priority List https://www.jobsandskills.gov.au/data/skills-priority-list;
   • the potential contribution to Australia by the applicant or sponsor such as their social, emotional and community ties to Australia including whether they are providing a valuable community service through their employment and/or volunteering activities; and,
   • any other relevant factor.
4. In its consideration of whether the requirements of PIC 4007(1)(c) should be waived, the Tribunal has had regard to all of the written and oral evidence provided including supporting documentation submitted both before and after the hearing as well as oral evidence at the hearing. In doing so, the Tribunal accepts that the estimated total cost of $904,060 as set out in the Third MOC Opinion is significant. However, for the following reasons the Tribunal has concluded that the grant of the visa would be unlikely to result in undue cost to the Australian community. It has first considered the relevance of Jeremiah Wamuyu's age.

Actual condition of the applicant at the time of this decision as distinct from the hypothetical person at the time of visa application

1. All three of the MOC opinions correctly state that, at the time of visa application, Jeremiah Wamuyu was a 7-year-old person. Each of the MOC's opinions assessed relevant data available to them by reference to a hypothetical person of that age. However, relevant to the Tribunal's consideration of whether a waiver is appropriate in this case, it notes that Jeremiah Wamuyu is 13 years and 9 months of age: he celebrated his thirteen birthday on 1 January 2025 and will turn 14 in just over 3½ months.
2. Taking into account the individual circumstances of Jeremiah Wamuyu, the Tribunal is of the view the costings for multiple services set out above in Table 1 at para [26] require reconsideration. First, the amount of $313,500 set out in row [1] for supported education is relevant to a child 'to age 16'. As Jeremiah Wamuyu is now 13 years and 9 months of age and, in anticipation of his family arriving in Australia for start of the 2026 school year by which time he will be 14 years of age, only 2 years of costings appear to be relevant. Next, as set out in row [2], Commonwealth disability services for Carer Payment/Allowance/ Subsidy for Disability Assistance Payments is for persons 'to age 15'. This costing, too, requires reassessment given Jeremiah Wamuyu is now 13 years and 9 months of age. Given there is a 2 year wait for such services, costings may not be relevant at all: however, the Tribunal considers one year costing is appropriate.
3. In relation to Commonwealth disability services for a period of one year for persons aged 16 as set out in row [3], the Tribunal considers it appropriate to include this costing as set out in Table 1. The Early intervention services set out in row [4] are irrelevant given they apply to children aged 7-8. Regarding information set out in row [5], Commonwealth disability services for children aged 9-14 with Intellectual Disability, the Tribunal considers that a single year is appropriate, that is, the year 2026 when Jeremiah Wamuyu can be expected to arrive in Australia when he will be 14 years old. Finally, in relation to row [6] for costings in respect of Intellectual Disability for 2 years for children aged 15 and 16, the Tribunal accepts the calculation of the costings as set out in Table 1.
4. Taking into account the individual circumstances of Jeremiah Wamuyu, the Tribunal is of the view that all costings set out in Table 1 at para [26] above require reconsideration. Having regard to the fact that Jeremiah Wamuyu will be 14 years old in just under 4 months and the Tribunal accepts that, following its remittal of this matter to the Department, it will take some time for the Department to request and then consider remaining documentation to favourably consider the visa applications and, further, it will likely then take further time for Mr Haran and his family to sell their assets in Kenya, pack up their belongings and come to Australia. As such, the Tribunal's recalculation of cost estimates for the provision of healthcare and special community services as at the time of this decision, should be recalculated to start from 1 January 2026. This would estimate the total cost to the Australian community of $241,640 as set out in Table 2 below:

Table 2 - Jeremiah Wamuyu 's likely required health care or community services (as at 31 December 2025)

Supported Education to age 16. Cost estimate referencing Disability

Services NfG, May 2024 including but not limited to Scenario 4.

Commonwealth disability services - $32,120.00 x 1.0 Year

Carer Payment/Allowance/Subsidy with Disability Assistance Payment

to age 15 with 2 year wait. Cost estimate referencing Disability

Services NfG, May 2024 including but not limited to Scenario 4.

Commonwealth disability services - $31,120.00 x 1.0 Year

Carer Payment/Allowance/Subsidy age 16. Cost estimate referencing Disability Services NfG, May 2024 including but not limited to Scenario 4.

Amended (weighted) mean NDIS budgets based on Participation Data at 31 March 2025, Intellectual Disability (moderate, age 7-8).

Commonwealth disability services - $27,300.00 x 1 Year

Amended (weighted) mean NDIS budgets based on Participation Data at March 2025, Intellectual Disability (moderate, age 9-14).

Commonwealth disability services - $49,700.00 x 2.0 Years

Amended (weighted) mean NDIS budgets based on Participation Data

at March 2025, Intellectual Disability (moderate, age 15-16).

1. The Tribunal acknowledges that MOCs are required to make their assessment as at the time of visa application: in this case, 6 years ago on 2 August 2019. However, mindful of dicta in the Full Federal Court's decision in Bui's case referred to above, it is relevant for the Tribunal to consider the applicants' circumstances as at the time of this decision. Accordingly, the Tribunal has estimated costs for Commonwealth disability services and NSW Special Education services as being reduced to $241,640.
2. As noted above, consistent with immigration policy set out PAM 3, the current threshold for the level of costs regarded as 'significant' is $86,000.[1] The Tribunal's recalculation of actual costs for Commonwealth disability services and Special education services as at the time of its decision has reduced the costs set out in the Third MOC Opinion from $904,060 to an estimated total cost of $241,640. However, this recalculation of costs is nearly triple the significant cost of $86,000 identified in policy and, accordingly, it is necessary for the Tribunal to proactively decide whether this is an appropriate case to waive the PIC 4007 requirements in this case. As noted above at para [31], PAM 3 sets out criteria which may be considered as relevant to consideration of a waiver.
   1. The Tribunal has considered evidence provided by the couple at the hearing as well as the extensive documentary evidence submitted both before and especially after the hearing in support of the appropriateness of considering a waiver of PIC 4007 in this case.

The capacity to mitigate the potential costs such as an ability to access resources involved in accessing private medical treatment including: income, assets and, savings; and, available support from family or community groups;

1. The couple's capacity to mitigate the potential costs of treatment to Jeremiah Wamuyu has been addressed from multiple perspectives considered below.
2. First, Mr Haran told the Tribunal that he will take out full medical insurance to assist cover costs related to any treatment required by Jeremiah Wamuyu. He added that the couple has no hesitation in relation to selling all their assets that they currently own in Kenya once approval has been granted for them to relocate to Australia. After the hearing, the couple provided evidence that Mr Haran and Mrs Karani own 2 automobiles and real estate in Kenya which will be sold when they move to Australia.
3. Evidence was provided to the Tribunal that Mr Haran purchased a block of land which included a house in Kayole Riverside South in Nairobi on 26 May 2023 for 2,425,000 Kenya Shillings (KES), that is, AUD 26,320.[2] This is confirmed in the signed Agreement for Sale provided. Although Mr Haran submits that downloaded information from Google property searches provided confirms real estate in Kayole Riverside South has increased in value, the Tribunal accepts that the current value is roughly equivalent to the price that he paid for the Kayole Riverside South property.
4. In addition, evidence has been provided that Mrs Karani has a 25% shareholding in a 7.7 acre rural property in Maragua Ridge, Kenya which was purchased in late 2021. At the time, the property had no improvements. A copy of the Surveyor's report dated 25 October 2021 was provided to the Tribunal together a copy of the signed contract of sale dated 1 November 2021. Also provided was a copy of the Title Deed registered under the Kenyan Land Registration Act 2012 dated 20 December 2021 confirming ownership of the property by 4 women including Mrs Karani. Evidence of downloads from Google property searches has also been provided confirming that land prices around Maragua Ridge have risen. The contract for sale confirms that Mrs Karani and the other 3 purchasers paid 9,240,000 KES, that is, AUD 110,649[3] for purchasing the 7.7 acres. The couple confirmed at the hearing that, since that time, over 100 fruit trees have been planted and a number of buildings have been constructed including a small shed and a building which will be used for storing/processing fruit. The couple submit, and the Tribunal accepts, that even allowing for no increase in the Maragua Ridge property's value despite the improvements made, Mrs Karani could expect to receive 2,310,000 (that is, a quarter of the original purchase price) for sale of her 25% share in the Maragua Ridge property to the other 3 shareholders. This approximates AUD 27,600.
5. Further, evidence was provided of the ownership by Mr Haran of a Nissan Patrol car Registration Number K####01G. The signed Motor Vehicle Valuation & Inspection Pre-Insurance report dated 23 July 2025 confirms the car is in a satisfactory condition and is currently valued at 1,480,000 KES, that is, AUD 17,720.[4] Evidence was also provided of Mr Haran's ownership of a Isuzu D-Max car Registration Number K####4Q. The signed Motor Vehicle Valuation & Inspection Pre-Insurance report dated 23 July 2025 confirms the car is in a good condition and is currently valued at 2,210,000 KES, that is, AUD 26,460.[5]
6. Based on evidence provided, the Tribunal is satisfied that the couple have acquired assets in Kenya which they propose to settle prior to coming to Australia and thereby enable them to mitigate the costs of treatment for Jeremiah Wamuyu.
7. Second, in addition to selling their assets in Kenya, the couple have also provided evidence of their arrangements regarding planned employment following their arrival in Australia.
8. The Tribunal acknowledges Mr Haran's CV sets out details of his skills, qualifications, licenses and work experience during his 40 years in the construction and maritime industries based in Cairns and Sydney. Copies of Mr Haran's qualifications and references from some of past employers, dating as far back as October 1987, have been provided.
9. Relevant to the considerations set out in PAM referred to above at para [31], the Tribunal notes Mr Haran told the Tribunal during the hearing that he has extensive experience in Australia working in both the maritime and building industries. Evidence has been provided of Mr Haran's following qualifications:
   1. Certificate of Competency confirming Mr Haran's ability to serve as a Marine Engine Driver 3 (Motor) on a vessel in any capacity which requires the possession of a Certificate of Competency issued by Waterways Authority NSW on 20 November 1997;
   2. Certificate of Competency confirming Mr Haran's qualification of Master Class 4 issued by Waterways Authority NSW on 20 October 2003;
   3. Certificate IV in National Maritime Operations issued by TAFE NSW dated December 2003;
   4. Certificate III in Transport and Distribution (Marine Engine Driving) issued by Wide Bay Institute of TAFE dated 11 December 2004;
   5. Certificate III in Carpentry issued by South Western Sydney TAFE NSW dated 21 December 2005;
   6. Certificate of Competency Marine Engine Driver 2 (Motor) issued by Transport maritime NSW dated 5 December 2006; and,
   7. Certificate IV in Building Studies, Residential issued by TAFE NSW dated 28 May 2008.
10. In addition, the Tribunal has been provided with Mr Haran's Building Services Authority Licence No 11###82 issued by Building Services Authority dated 6 July 2009 confirming his registration as a licensed builder in NSW. Signed statements have been provided from multiple employers dating back to 1987 confirming Mr Haran's work experience as set out in his curriculum vitae provided. Relevant to Mr Haran's proposed relocation to Queensland following his anticipated return to Australia, the Tribunal has been provided with a copy of Mr Haran's Builder Contractor Licence issued by Queensland Building and Construction Commission expiring 6 July 2027.
11. Further, the Tribunal has been provided with copies of Awards and Certificates of Appreciation issued to Mr Haran evidencing his contribution to the building and maritime industries including his community efforts in this regard. This includes multiple certificates regarding the completion of First Aid courses and evidence of his recognition by Tribal Warrior Assoc Inc, a collaboration of the Australian Hydrographic Service, the National Maritime Museum and the NSW Reconciliation Council for Mr Haran's participation as Skipper on the vessel Tribal Warrior being the first aboriginal maritime vessel and crew to circumnavigate Australia.[6] This occurred during the 2-year period from 30 August 2001 to 9 June 2003. The Tribunal has also been provided with many newspaper articles from the Northern Territory News, the National Indigenous Times, the Innisfail Advocate and the Mirror about the famed circumnavigation including photographs of Mr Haran with crew on the Tribal Warrior.
12. Information submitted in relation to Mr Haran's current work in Kenya as a volunteer Counsellor and Facilitator with ACCOSS confirms his roles include facilitating ACCOSS Kenya's programs and working as a skills trainer and mentor.
13. In relation to resuming employment in Australia, Mr Haran told the Tribunal that he plans to work as a builder/carpenter with his nephews Tim Joha and Nathan Eleazar who work as a plumber and electrician respectively in the Glenwood area, in regional Queensland. His nephews already have established businesses and they have told him that they even have jobs already lined up for him when he returns. Mr Haran also told Tribunal that, as the family intends to live in Glenwood which is near Tin Can Bay, he also expects to be able to use his maritime licenses - Master Class IV and Marine Engine Driver Grade II - as another opportunity to earn income. The Tribunal accepts that Mr Haran is currently a registered Builder in Queensland.
14. Nathan Eleazar provided a signed letter to the Tribunal dated 6 June 2025 confirming that he is looking forward to having the opportunity to work with his uncle Mr Haran given his uncle's Queensland Builder's Licence has been renewed to 6 July 2027. He opines that it would be a good opportunity for the 3 of them (Mr Haran, Nathan Eleazar and his cousin Tim Joha) to expand their business and, possibly downstream, build 'spec homes'. Evidence has been provided to the Tribunal of Nathan Eleazar's Gas Work Licence expiring 8 May 2028 issued by the Queensland Government and his Contractor Licence in Plumbing and Drainage. In addition, the Tribunal has been provided with the Individual Tax Returns for Nathan Eleazar for the year ended 30 June 2022 confirming his income in excess of $125,000 for the year.
15. Mr Haran's nephew Tim Joha has provided an email confirming he has work lined up for him when Mr Haran arrives in Australia. Also provided to the Tribunal was evidence of income received by Tim Joha T/A Village Electrical and Solar in the order of $145,000 per annum as confirmed by the NAB bank statements provided for the business (last 4 digits #8696) in the 6 month period from 30 November 2024 to 30 May 2025.
16. Mrs Karani told the Tribunal during the hearing about her work experience in Kenya. After the hearing, she provided a CV setting out details of her working in a supervisory role with Kazi Kwa Vijana (Work for the Youth) program which is a government-sponsored program created to help employment opportunities for young people in Kenya. Subsequently, she worked as a secretary with the Ministry of Water & Irrigation prior to her working as a weaving machine operator. She currently works as a volunteer Facilitator and Mentor with ACCOSS. Also provided after the hearing was a statement of service dated 13 August 2012 from Hon Ferdinand Waitutu MP, Minister of Water & Irrigation as well as a copy of Mrs Karani's contract of employment with Ready Consultancy Company Ltd dated 1 July 2016 as a Weaver. Information provided includes Mrs Karani's Certificate issued by Komarock College of Business Studies in Nairobi confirming she completed Module One of a Computer Software Package on 29 August 2009.
17. In relation to her plans for work in Australia, Mrs Karani told the Tribunal that she has been offered a job as a Fitness Assistant. The Tribunal has been provided with a copy of the Employment Contract confirming Mrs Karani's acceptance on 3 June 2025 of an offer of employment for the role of a casual Fitness Assistant - Level I at the Village Swim & Gym in Glenwood. Ms Karani will be paid $29.33 per hour including casual loading as set out in the Fitness Industry Award 2020.
18. Based on the extensive evidence provided, the Tribunal accepts that the couple have proactively engaged with mitigating costs to be incurred by the Australian community as set out in the MOC's opinions by engaging with opportunities to earn incomes following their arrival in Australia.
19. Third, in addition to selling their assets in Kenya and having given proactive consideration to the couple's work opportunities in Australia, Mr Haran told the Tribunal that he and his family have received multiple offers of support from family and friends who have skills qualifications and experience in educating children with learning difficulties. Further, they have also received notice of quantified annual financial support from registered charity ACCOSS and an offer to live rent free in a property at Glenwood which is where Mr Haran's sister and her family live, including Mr Haran's 95 year old mother. It is evident to the Tribunal that, essentially, Mr Haran's extended family in Australia has provided financial support to Mrs Karani and her husband whilst Mr Haran has been living in Kenya and, relevantly, they will continue to provide support to the family by facilitating provision of rent-free accommodation.
20. The Australian Government's register of Australian Charities and Not-for-profits Commission confirms ACCOSS has been a registered charity since December 2011.[7] The register notes ACCOSS provides funding for homeless youth and people in crisis within Australia, as well as supporting Kenyans with basic necessities including a weekly food program for the most destitute. Further, it states that ACCOSS supports Kenyan youth with school fees and support including tutoring and mentorship. It also runs a face-to-face online tutoring program for Kenyan children who cannot attend school, supported by volunteer teachers in Australia. Funds raised by ACCOSS are used solely for the direct relief of poverty, sickness, suffering, distress, misfortune, disability, destitution or helplessness, giving freely to those who are in need and those whose needs arouse compassion in the community.
21. In relation to support for the couple from ACCOSS, the Tribunal has been provided with a signed letter from Immanuel Landy-Ariel, a Director of ACCOSS dated 13 July 2025. Mr Landy-Ariel's appointment as a Director is confirmed in ASIC records provided as well as information on the Australian Charities and Not-for-profit Commission's website. The letter provided to the Tribunal notes that the Directors of ACCOSS held a special meeting to consider supporting Jeremiah Wamuyu in Australia and it confirms that the charity has formally agreed to financially support his educational needs by giving $20,000 annually to Mr Haran. The money allows for regular speech therapy and educational support. The letter also acknowledges that the amount may be adjusted upon review following annual reports regarding Jeremiah's progress and needs.
22. Relevant to consideration of the couple's request for waiver of the PIC 4007 requirements, Mr Landy-Ariel's letter confirms ACCOSS's decision to provide such funds annually was made in light of the following considerations:
    • Jeremiah's need fits ACCOSS's objective criterion for support;
    • the need to mitigate possible expenses that the Australian government might incur in respect of Jeremiah's educational needs
    • Mr Haran's desire to return to Australia with his family given his concerns for the safety of his family and their upbringing in Kenya; and,
    • the number of regular donors to ACCOSS, many of whom know Mr Haran personally, having requested that the organisation support his transition back to Australia with his family.
23. Mr Haran told the Tribunal during the hearing that he and his wife have already made arrangements with the ACMC Property Holdings Ltd ACN 628 864 942 (ACMA Holdings) to live in a property at Arbourfive Road, Glenwood in Queensland (the Glenwood Property) where his mother, his sister Bathsyayna Eleazer and her family live. Glenwood is located on the Bruce Highway in regional Queensland, roughly halfway between Gympie and Maryborough.
24. The Tribunal has been provided with evidence of ownership of the Glenwood Property by ACMA Holdings. Evidence provided addresses the delegate's concern as set out in their decision record, a copy of which was provided to the Tribunal, that the couple had not indicated in information lodged with the Department where they intended to live upon migrating to Australia.
25. After the hearing, the Tribunal was provided with a signed letter addressed to Mr Haran from Asaph Bar-Roka dated 16 July 2025 confirming that the Glenwood Property is available for Mr Haran, his wife and 3 children to live in on the basis that they maintain the dwelling in good order and it is kept to satisfactory standard. Evidence of Mr Asaph Bar-Roka's appointment as a Director of ACMA Holdings effective 18 September 2018 and his Director Identification Number has also been provided. The Tribunal notes that information on the register of Australian Charities and Not-for-profits Commission confirms that Asaph Bar-Roka is also a current Director of ACCOSS. As explained during the hearing, this essentially means that Mr Haran and his family will not need to meet any rent expenses for accommodation.
26. Fourth, in an effort to minimise costs for the family and the Australian community regarding treatment of Jeremiah Wamuyu, the couple has provided the Tribunal with multiple letters from qualified educators confirming their willingness to assist Jeremiah with his education.
27. In this regard, signed and dated letters of support as well as evidence of the person's qualifications have been provided from the following people who have volunteered to provide assistance to Jeremiah on a regular and ongoing basis:
    1. David Lane-Benaiah, a retired teacher. In this letter dated 19 May 2025, David Lane-Benaiah confirms he has volunteered to tutor Jeremiah 2 to 3 days per week online from his home in Parkes NSW, or in person when visiting Glenwood where his children and grandchildren live.

Mr Lane-Benaiah states that he has been a long-time friend of Mr Haran having known him for the last 40 years and several of his children have spent time in Kenya with him (and Mr Haran's family there) assisting with the educational work that they are doing. He adds that he has experience in teaching and supporting special needs children having worked across a number of schools in NSW including Currajong Disabilities Services in Parkes. Mr Lane-Benaiah also has a Certificate in Education Support IV issued by TAFE Queensland, a copy of which was provided to the Tribunal;

1. Anne M Lane-Benaiah, a teacher who is registered with the Queensland College of Teachers and who has been awarded a Certificate by the NSW Institute of Teachers in October 2018 in recognition of her work in Understanding Autism Spectrum disorder. Evidence of her teacher registration and award were provided to the Tribunal;
2. Awana Amos, a qualified Sociologist who specialises in Educational Science including education communication and disability. In her letter dated 3 June 2025, Ms Amos confirms she lives next door to the Glenwood Property and so will be a neighbour of Mr Haran and his family. She has known Mr Haran for many years and has spent time living in Kenya with Mr Haran and his family for 6 months.

Ms Amos has volunteered to provide 1 hour of educational tutoring sessions at least twice a week to Jeremiah as well as personal training sessions for another hour at least twice a week. Evidence of Ms Amos' current registration as a Personal Trainer with AUSactive and her Certificate IV in Fitness issued by Vast Fitness Academy dated 10 November 2023 were also provided to the Tribunal; and,

1. Marcus Barachiah, a long-term friend of Mr Haran who has known of him due to Mr Haran's contribution to the Tribal Warrior Association. In his letter dated 15 May 2025, Mr Barachiah states he had the pleasure of visiting Mr Haran and Mrs Karani in Kenya recently and offered some English tuition to the couple's 3 children as he has qualifications issued by the Australasian Training Academy as a Teacher of English to speakers of other languages. He was awarded an Advanced TESOL Diploma on 22 April 2015. Evidence these qualifications was provided to the Tribunal.

Mr Barachiah makes some observations in relation to Jeremiah being an 'enthusiastic and energetic child who has a keen ear for sounds and remarkable vocal control'. He adds that he has no hesitation in volunteering his English Teaching services to help Jeremiah integrate into the Australian society.

1. Based on evidence provided, the Tribunal accepts that multiple friends of Mr Haran and Mrs Karani have agreed to provide Jeremiah with ongoing and free educational support. It is clear to the Tribunal that the offers to volunteer support and tuition to Jeremiah have been made by friends who have appropriate qualifications to deliver such services.

Family links to Australia and the impact on family members including minor children

1. Mr Haran and Mrs Karani have provided details in relation to the couple's extended family in Australia and the benefits, in their view, of relocating their family to Australia.
2. First, relevant to the Tribunal's consideration of the request for waiver of PIC 4007 criteria in this case, the couple confirm they now have 2 Australian citizen children who have been born in Kenya and whom they now wish to bring to Australia.
3. Lodged with the Department was evidence of the birth in Kenya of the couple's daughter. The Tribunal will provide to the Department a copy of the Birth Certificate of the couple's son which was provided to the Tribunal and it will also provide evidence of the children's Australian Citizenship Certificates. The delegate acknowledged that evidence of an adverse impact on Australian citizen minor children if a decision not to waive the PIC 4007 requirements is made may be afforded significant weight. However, the delegate noted that no documentary evidence had been provided to substantiate the claim of an adverse impact on the couple's daughter had been made.
4. The Tribunal considers it is appropriate to consider and prioritise the interests of the couple's 2 Australian citizen children as they have the right to grow up in Australia without fear and they should be afforded the opportunity to meet their 95 year old grandmother who is unable to travel to Kenya due to her age.
5. The couple has provided a number of links to articles addressing the issues of concern about their children's ongoing safety in Kenya. Wikipedia reports information in relation to the area in which the couple live with their family - that is, Kayole in Nairobi - as being a 'low-income neighbourhood which exhibits characteristics of a slum'. It notes a 'significant number of residents in Kayole are unemployed, live in abject poverty and can barely raise $1 a day'. Relevantly, in terms of security, Kayole is 'riddled with criminal gangs, kidnappings, armed and aggravated robberies, theft as well as child trafficking'.[8] Also provided were a number of newspaper articles including stories identifying Kayole as a 'rape hotspot', it being one of the most insecure areas in Nairobi with 8 murders and 108 robberies reported in the 30 day period to 27 September 2020, the rescue of 16 children from a house in Kayole who were intended to be trafficked and the rise of gang warfare. UNICEF has also published articles in relation to concerns regarding children safety following protests in Nairobi.[9]
6. The Tribunal notes that the Australian Government's Smartraveller website extract dated 16 May 2025 submitted by the couple confirms that protests and large demonstrations are common in Kenya with security forces being deployed in response. Travellers are recommended to avoid areas affected by protests, demonstrations or large public gatherings as the use of rubber bullets, tear gas, water cannons and live ammunition have resulted in multiple fatalities and injuries. As at the time of this decision, the Smartraveller website notes that a security alert was issued on 19 August 2025 warning that terrorist groups are an ongoing and persistent threat in Nairobi. Travellers are instructed to be alert in public places including hotels, embassies, restaurants, shopping malls, schools, police stations and places of worship. Due to the threat of terrorism and violent crime, travellers are advised to exercise a high degree of caution.[10]
7. The couple also provided articles confirming innocent civilians, including schoolchildren, have been tear gassed.[11] In addition, the Tribunal has been provided with evidence of articles regarding Nairobi's air pollution which, in 2019, was 4.2 times higher than the World Health Organisation recommended. The city's poor air quality stems from reliance on road transport, unclean cooking fuels, improper waste management and highly-polluting small-scale industries. Up to as many as 2,500 people die each year as a result of Nairobi's pollution.[12]
8. Questioned during the hearing why, having regard to the information set out in the Wikipedia reports, he had not moved his family to another safer area in Kenya, Mr Haran responded that he did not come to Kenya to make money: rather, he came to serve and to give back to the community. He added that the riots occurring across Kenya at the moment - that is, as at the date of the hearing - are frightening but they are not occurring in Kayole.
9. Mr Haran outlines for the Tribunal's consideration the compassionate and compelling reasons why his Australian citizen children should be afforded the opportunity to come to Australia. Apart from the opportunity to meet up with his now 95 year old mother, he emphasised the importance of access to quality education which is limited in Kenya as well as his desire for his children to enjoy Australia's culture and lifestyle. He added that having to stay in Kenya would expose his children to safety issues as set out in the articles provided. Mr Haran opines that, with Kenya's unstable political climate, he feels it would be safer for his family to be in Australia, particularly given the upcoming elections in 2027.
10. Invited for her comments, Mrs Karani stated that her children have been the subject of racially prejudiced comments: as they are clearly of a different background, they are often told to 'go back to where you come from'. The Tribunal acknowledges multiple media articles regarding the situation of mixed-race children in Kenya confirm that they often face discrimination and prejudice based on their appearance or cultural background and this can lead to feelings of insecurity and isolation.[13] A teary Mrs Karani pleaded with the Tribunal to genuinely engage with what is in 'the best interests of my Aussie kids'.
11. The Tribunal considers it is appropriate to consider and prioritise the interests of the couple's 2 children as they have the right to grow up in Australia without fear. It accepts evidence and submissions that it is in the best interests of the couple's 2 Australian citizen children and Jeremiah Wamuyu that the family move to live in Australia. The Tribunal does not accept that it would be appropriate to separate Mr Haran and his 2 children from his wife and the mother of his 2 children should she feel the need to remain in Kenya to be with her son. It accepts Mr Haran's evidence that he has filled the role of Jeremiah's father since the couple were married.
12. Second, the Tribunal accepts that Mr Haran has an extended family network in Australia and that it would be in his extended family's best interest that he return to Australia together with his wife and his children, including Jeremiah Wamuyu.
13. Evidence provided to the Tribunal confirms that Mr Haran has 2 brothers, 3 sisters and 2 half-brothers, all of whom are Australian citizens who live in Australia, as does his mother Margaret Sheila Cordell. Ms Cordell has provided a signed letter in which she states that, as a 95-year-old, she kindly requests the Tribunal allow her son Mr Haran, his wife and 3 children to come and stay in Australia so that she might spend some time with them.
14. In addition, the Tribunal notes evidence provided that Mrs Karani's sister Naomi Karani lives in Glenwood where the couple plan to relocate upon their return to Australia. She was granted a Subclass 801 Partner visa on 25 September 2021 and lives there with her 2 children as well as her Australian citizen husband. As noted in an email from Naomi Karani to her sister dated 4 June 2025, her own 2 children could even be in the same class as Mrs Karani's children when they move to Australia.
15. The Tribunal recognises Mr Haran has deep family connections with Australia and that it would be in the best interest of his family including his children to return to Australia. It also recognises that Mrs Karani has family in Australia.

The occupational skills of the applicant or the sponsor

1. As set out above, Mr Haran has extensive qualifications and experience both in the building industry and maritime industry.
2. The Tribunal notes that the occupations of Building Associate ANZSCO 312112 and Carpenter ANZSCO 331212 are identified as being available to applicants for multiple visas in regional Queensland. As such, the Tribunal accepts that there is a genuine shortage of skills held by the Australian citizen sponsor Mr Haran who plans to live with his family at the Glenwood Property which is located in regional Queensland.[14] Further, the occupation of Carpenter ANZSCO 331212 is on the current Skills Priority list for Queensland which is published by Jobs & Skills Australia.[15]
3. Based on available information, the Tribunal accepts the potential contribution to Australia by the sponsor Mr Haran upon his return to Australia through his employment.

The potential contribution to Australia by the applicant or sponsor including their social, emotional and community ties to Australia including whether they are providing a valuable community service through their employment and/or volunteering activities

1. The delegate acknowledged in their decision record, a copy of which was provided to the Tribunal, information about Mr Haran's record of past volunteer work in Australia with the Tribal Warrior Association. Information lodged with the Department confirmed that Mr Haran's services provided value to the Australian community through the organisation's cultural and community efforts. Some weight was afforded to Mr Haran's services in this regard. Further details of Mr Haran's community efforts including his recognition by Tribal Warrior Assoc Inc for participation as the Skipper on the Tribal Warrior, the first aboriginal maritime vessel and crew to circumnavigate Australia are set out above.
2. Mr Haran told the Tribunal that for over 5 years he was voluntarily involved in the Tribal Warrior Association in Sydney and thereby contributed to its work of training indigenous Australians in acquiring skills and experience in the maritime industry as well as providing encouragement and building hope in the Australian aboriginal community at large. The Tribunal acknowledges Mr Haran's contribution in this regard.
3. Recognition of Mr Haran's contribution to the maritime industry has prompted a signed letter of support from Malachi Shanina dated 3 June 2025 confirming Mr Haran assisted him gain qualifications in the maritime industry and led to his involvement on Australian Navy for many years and then skippering in the dive industry off the Queensland coast. Mr Shanina has provided a copy of his Department of Defence ID card. Currently, Mr Shanina lives in Glenwood and will be a neighbour of the family when they return to Australia.
4. In addition, the Tribunal acknowledges the work that Mr Haran has undertaken in Kenya with ACCOSS. He told the Tribunal that it has been an avenue by which he has expressed the desire he feels that Australians have to extend compassion to others in the world who are in need.
5. The Tribunal accepts that Mr Haran has, and will continue to, contribute to the wider Australian community through his voluntary work following his return to Australia.

1. The Tribunal has considered the professional reports provided and which comment on the condition experienced by Jeremiah Wamuyu that led to the delegate's finding that he does not satisfy PIC 4007(1)(c)(ii)(A) of Schedule 4 to the Regulations.
2. As set out in the undated signed letter from the Headteacher of his school, Ngando Education Centre, Jeremiah is a student with particular learning challenges: however, she is satisfied that he has made considerable progress and will mature into a helpful and responsible adult. Reference is made to the accompanying progress report from instructor Sally Maguna dated 30 April 2025. In her signed letter, Sally Maguna confirms that, in the 12 months she has been working with him, Jeremiah's writing and reading skills have tremendously improved as has his speech which is in improved to the point where he is able to understand both English and Kiswahili. Further, she adds he has developed a deeper understanding of things around him and is able to answer questions verbally with confidence having developed perseverance and confidence skills.
3. Mindful of the commitments from family friends who are educators referred to above in para [66], and having regard to the Member's personal experience as a registered teacher in Queensland, the Tribunal acknowledges Jeremiah Wamuyu's development and personal growth to date and the prospects that this will continue when the family relocates to Australia.

1. It is evident to the Tribunal that the costs assessed by the RMOC in the Third MOC Opinion for Jeremiah Wamuyu are significant. On the material before it, the Tribunal accepts that the actual cost to the Australian community of Jeremiah Wamuyu's condition of moderate intellectual impairment are, given his current age, likely to be considerably less than those assessed by the RMOC in the Third MOC Opinion for the reasons outlined above. It does, however, accept that his condition is such that it would require healthcare and/or community services that would be likely to result in a significant cost to the Australian community in the areas of health care and community services.
2. Further, the Tribunal notes the extensive evidence provided confirming the capacity of Mr Haran and his wife Mrs Karani to mitigate the potential costs of health care and community services to the Australian community, the impact on their family members including the couple's 2 Australian citizen children, the extensive family links that Mr Haran has to Australia as well as his occupational skills. The Tribunal acknowledges the couple have received assurances from multiple family and friends regarding their ongoing ability to support the couple including volunteering to provide tuition to Jeremiah Wamuyu. It also acknowledges the support from organisations such as ACCOSS to provide funds to the couple on an annual basis to assist meet costs for Jeremiah Wamuyu's treatment of his moderate intellectual impairment.
3. For these reasons, the Tribunal is satisfied that the granting of the visa would be unlikely to result in undue cost or undue prejudice to the access to healthcare or community services of an Australian citizen or permanent resident within the terms of PIC 4007(2). Therefore, PIC 4007(1)(c) may be waived subject to meeting all other requirements for the visa.
4. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visas to the Minister to enable consideration of the remaining criteria.

1. The Tribunal sets aside the decision under review and remits the applications for Partner (Provisional) (Class UF) visas for reconsideration with the order that the second named applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
   • Public Interest Criterion 4007(1)(c) for the purposes of cl 309.228 of Schedule 2 to the Regulations.

Representative for the Applicant: Not applicable

ATTACHMENT - Extracts from the Migration Regulations 1994

**2.25A Referral to Medical Officers of the Commonwealth

(1) In determining whether an applicant satisfies the criteria for the grant of a visa, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether a person (whether the applicant or another person) meets the requirements of paragraph 4005(1)(a), 4005(1)(b), 4005(1)(c), 4007(1)(a), 4007(1)(b) or 4007(1)(c) of Schedule 4 unless:

(a) the application is for a temporary visa and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements; or

(b) the application is for a permanent visa that is made from a country (whether Australia or a foreign country) specified in a legislative instrument made by the Minister for the purposes of this paragraph and there is no information known to Immigration (either through the application or otherwise) to the effect that the person may not meet any of those requirements.

Note: For foreign country, see section 2B of the Acts Interpretation Act 1901.

(2) In determining whether an applicant satisfies the criteria for the grant of a Medical Treatment (Visitor) (Class UB) visa, if there is information known to Immigration (either through the application or otherwise) to the effect that the requirement in subclause 602.212(2)(d) has not been met, the Minister must seek the opinion of a Medical Officer of the Commonwealth on whether the requirement has been met.

(3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.**

**Schedule 2 - Provisions with respect of the grant of Subclasses of visas

309.22 Criteria to be satisfied at time of decision

309.228 (1) Each member of the family unit of, and each person who is dependent on, the applicant who is an applicant for a Subclass 309 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4020; and

(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and

(b) if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.

(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and

(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

Note: These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

309.31 - Criteria to be satisfied at time of application

• 309.311 The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

309.32 - Criteria to be satisfied at time of decision

(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021; and

(b) if the applicant had turned 18 at the time of application - satisfies public interest criterion 4019.

(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] [Sch4 4005-4007PI] Sch4/4005-4007 - The Health Requirement

[2] Currency Converter | Foreign Exchange Rates | OANDA

[6] Cultural Cruises | Tribal Warrior Aboriginal Corporation | Sydney

[7] Anglican Catholic Church Outreach & Social Services Ltd | ACNC

[8] Kayole - Wikipedia

[9] UNICEF expresses deep concern for children's safety following protests in Nairobi and other parts of Kenya

[10] Kenya Travel Advice & Safety | Smartraveller

[11] "Unchecked Injustice": Kenya's Suppression of the 2023 Anti-Government Protests | HRW

[12] Nairobi and air pollution - Clean Air Fund

[13] The situation of mixed-race children in Kenya | by solesforafricanchild | Medium; Biracial children of Kenyan mothers, British fathers demand recognition | AP News

[14] Skilled occupation list

[15] Occupation Shortage List | Jobs and Skills Australia