1606100 (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision regarding a Skilled (Residence) (Class VB) visa application. The applicant sought reconsideration of the decision, which had found that Public Interest Criterion (PIC) 4005 was not satisfied. The core of the dispute revolved around the applicant's compliance with the Department's requests for a new medical assessment, which was a prerequisite for satisfying PIC 4005(1)(aa).

The Tribunal was required to determine whether the applicant met PIC 4005, specifically considering the requirements relating to freedom from tuberculosis and diseases or conditions that could pose a threat to public health or prejudice access to community services. A key legal issue was whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, how such an opinion should be considered by the Tribunal, particularly in light of the obligation to treat a MOC opinion as correct unless it is demonstrated that the MOC did not apply the correct statutory test.

The Tribunal reasoned that, as the applicant had applied for a permanent visa, the exclusion provision in PIC 4005(3) did not apply, meaning the applicant had to satisfy PIC 4005(1)(c)(ii)(A). The Tribunal noted that, based on the evidence, a MOC opinion was required to assess the applicant's compliance with PIC 4005(1)(a), (b), and (c). However, the Tribunal found that the delegate had not been satisfied that PIC 4005 was met due to the applicant's non-compliance with the request for a new medical assessment under PIC 4005(1)(aa). Given these findings, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets PIC 4005 for the purposes of cl.886.225 of Schedule 2 to the Regulations.