1711132 (Migration)

This matter concerned an application for a Skilled (Residence) (Class VB) visa, Subclass 885, by an applicant who had undergone an organ transplant in 2010. The dispute centred on whether the applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from certain diseases or conditions that may impact the Australian community. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant satisfied PIC 4005, specifically subclause (1)(c)(ii)(A), which mandates that a disease or condition must not be likely to require health care or community services that would result in significant cost to the Australian community. The Tribunal was required to consider the opinion of the Medical Officer of the Commonwealth (MOC) regarding the applicant's condition.

The Tribunal reasoned that under regulation 2.25A, where an opinion of a MOC is required for a permanent visa application, that opinion must be taken as correct. The MOC had opined that a hypothetical person with the applicant's condition, of the same severity, would likely require health care or community services resulting in significant cost to the Australian community. As the applicant had applied for a permanent visa, the exclusion provision in PIC 4005(3) did not apply. Consequently, the applicant had failed to satisfy PIC 4005(1)(c)(ii)(A).

The Tribunal affirmed the decision not to grant the applicant the Skilled (Residence) (Class VB) visa.