1515961 (Migration)

This matter concerned an appeal by applicants for Employer Nomination (Permanent) visas against a decision not to grant them these visas. The central dispute revolved around whether the applicants met Public Interest Criterion (PIC) 4005, a requirement for visa grant. The case was heard by a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicants satisfied PIC 4005, specifically concerning their health status. This criterion requires applicants to be free from tuberculosis, free from diseases or conditions that pose a threat to public health or the Australian community, and free from conditions likely to necessitate significant health or community services, or prejudice access to such services for Australian citizens or permanent residents. The Tribunal also had to consider whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it was correctly applied.

The Tribunal reasoned that PIC 4005(1)(c)(ii)(A), which relates to significant costs to the Australian community for health and community services, was applicable to the applicants as they sought permanent visas, and the exclusion in PIC 4005(3) for temporary visas did not apply. The Tribunal noted that a MOC opinion was required and, while such an opinion is generally taken as correct, the Tribunal must be satisfied that the MOC applied the correct statutory test. In this instance, the fifth applicant had been diagnosed with a moderate functional impairment. The Tribunal affirmed the decision not to grant the visas. However, the Tribunal also considered the applicants' request to refer the case to the Minister for consideration under s.351 of the Migration Act 1958, which allows the Minister to substitute a more favourable decision if it is in the public interest. The Tribunal decided to refer the matter to the Department for the Minister's consideration.