457 Visa Rejected Due To Child's Autism

Townsville nurse Maria Sevilla, who arrived in Australia from the Philippines eight years ago with her son Tyrone, has had her application for a skilled worker’s 457 visa rejected by the Australian government because Tyrone has been diagnosed with autism.  The ABC reported that Maria was told that Tyrone could become a burden on taxpayers later in life, if he was to remain in Australia and become either a permanent resident or a citizen.

The news story has put the issue of 457 visas in the spotlight; in particular, how a person’s medical condition or disability can justify the rejection of a visa.   In this article we look at the laws which allow the Minister and the Department for Immigration and Border Protection to make rejections on this basis.

As at the date of this article, written reasons for the decision by the Migration Review Tribunal (if any) were not available to the public.  This article is therefore a commentary on the general matters which the Tribunal is required to take into account, and not the specific reasons delivered in Ms Sevilla’s case.

The Laws behind the decision

The Migration Act 1958 and the Migration Regulations 1994 set out the kinds of visas available to temporary and permanent immigrants, and the processes and procedures which must be followed by applicants when applying for them. 

The Regulations contain the main matters which an applicant must satisfy in order to be granted a visa.  For subclass 457 temporary skilled worker visas, applicants must also satisfy certain “Public Interest Criteria” set out at Schedule 4 of the Regulations.

Amongst the Public Interest Criteria are that the applicant must demonstrate that he or she is free from a disease or medical condition which has resulted, or may result in the applicant requiring community services or health care, or meet the criteria for the provision of a community service.  If the applicant does suffer from such a disease or condition and it appears likely that as a consequence it will cost the Australian community or prejudice the access of a permanent resident or citizen to that health care, then this criterion may not be met.  Consequently, an application may be refused if it appears that the applicant’s health could be a burden on Australian taxpayers.

Under regulation 2.25, the Minister may make this enquiry of any other person in the applicant’s family as well.

Reviews undertaken by the Migration Review Tribunal

The Migration Review Tribunal is established under Part 6 of the Migration Act 1958.  Part 5 of the Migration Act sets out which of those decisions made in relation to the grant or refusal of a visa are “MRT-reviewable decisions”.  A decision relating to a 457 visa is an MRT-reviewable decision.

Section 347 of the Act stipulates the different time frames within which an application for review of a decision must be lodged with the Tribunal.  These differ depending on the nature of the decision which was made and the circumstances of the applicant.  For a decision in relation to a 457 visa, the person applying for the visa must bring their application for a review of the decision within 21 days of the date that the decision-maker notifies them of the decision.  Application forms are available on the Migration Review Tribunal’s website here.

The Tribunal conducts a merits review, which is a review into whether the decision-maker’s original decision is justified on the merits.  As with all administrative reviews, the Tribunal has powers to reconsider the matter in light of principles of natural justice and fairness, and is not bound by technical formalities.  The Tribunal has the power to request information it considers relevant, including by way or oral evidence in person at the hearing of an application, or by telephone at a hearing. 

The Migration Review Tribunal has the power either to vary or affirm the Minister’s decision, to remit the matter back to the decision-maker for reconsideration, or to set aside the decision altogether and substitute its own. 

Under section 351 of the Act the Minister may substitute his or her decision for that of the Tribunal, provided that it is more favourable to the applicant.  This is the legal mechanism which allows the Minister to reconsider an application on humanitarian grounds or natural justice grounds.

For further advice regarding applications for skilled working 457 visas or any other visa, contact our specialist immigration lawyers on our Go To Court hotline on 1300 636 846.