Eight Years, Three Forums, One Family: Winning a Health Waiver for Permanent Residence

The challenge

Our client, a skilled tradesperson, had built a settled life in regional Australia. He was a long-standing, highly valued employee in an industry facing an acute shortage of experienced technicians. His family was deeply embedded in their local community, holding leadership roles within it. Their pathway to permanent residence through the Employer Nomination Scheme should have been straightforward. It was not.

The family’s daughter lives with severe cerebral palsy. Under Public Interest Criterion 4007 (PIC 4007), the projected cost of her care over the assessment period was estimated at more than two million dollars. On that basis, the Department of Home Affairs refused the family’s permanent visa application. The refusal was not about the merit of the applicant or the genuineness of the nomination. It turned entirely on the health requirement, and on a single, devastating number.

The family faced the prospect of being separated from the country, the employer, and the community in which they had spent more than a decade of their lives. They appealed the visa refusal to the Administrative Review Tribunal, but the Tribunal agreed with the Department’s decision. For the family, this felt like end of the road.

Our approach

When we reviewed the Tribunal’s decision, we quickly realised it was not the end of the road for this family, because the Tribunal had made a critical legal error.

PIC 4007 contains a waiver. It exists precisely so that a decision-maker can look beyond a cost figure and weigh the human circumstances of a case, asking whether the cost or prejudice to the community would truly be “undue.” The Tribunal had misunderstood what that waiver required and applied a higher standard than the law allows.

We identified the error and took the matter to the Federal Circuit and Family Court of Australia. There, the Minister conceded that the Tribunal’s decision was affected by jurisdictional error, accepting that the Tribunal had misunderstood what was required by PIC 4007(2) and had purported to apply a higher standard than necessary. The error mirrored one our firm had successfully challenged in an earlier matter, in which we established the precedent in Mohamed Ali v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 34. Drawing on that authority, we showed the same error had been made here. Critically, had the error not been made, the Tribunal could realistically have reached a different outcome. The error was not a technicality. It was material to the result. The application was remitted by consent for reconsideration according to law. That outcome reset the case and gave the family a genuine second opportunity.

Back before the Tribunal, our work focused on building the strongest possible waiver case. The health requirement itself could not be disputed, because a Medical Officer of the Commonwealth opinion must be accepted as correct. The waiver, however, is an evaluative and discretionary judgment, and it is open to compassionate and compelling circumstances. That was the ground on which the case would be won or lost.

We assembled and presented a comprehensive evidentiary picture:

• Updated specialist evidence. We obtained current reports confirming that the daughter’s specialised care could not be interrupted without serious risk to her health, development, and quality of life, and to the wellbeing of her carers.
• Employer impact. We secured detailed evidence from the employer demonstrating that the loss of our client would have a severe operational impact in a sector with virtually no available skilled replacements.
• Community and family ties. We documented the family’s decade of settlement, their active community leadership, the care provided within the family, and the upskilling undertaken to support their daughter’s needs.
• Compassionate circumstances. We set out the profound disruption that relocation would cause, particularly for the daughter, whose developmental gains depended on the supports available here.

The outcome

The Tribunal set aside the refusal. It accepted that, taken cumulatively, the circumstances meant the grant of the visa would be unlikely to result in undue cost or undue prejudice. The health requirement was waived, and the applications were remitted to the Department and the permanent residence visas were granted.

After more than eight years and three separate forums, the family’s future in Australia was secured.

Why it matters

Health waiver cases are among the most difficult and most human in migration law. They demand technical precision, persistence across multiple areas of specialisation, and the ability to translate a family’s lived reality into a compelling legal case. Recognising a Tribunal’s legal error and pursuing it through the courts, rather than accepting an adverse decision at face value, can be the difference between a family staying and a family being forced to leave.

Details in this case study have been anonymised to protect our clients’ privacy.