1713717 (Migration)

This matter concerned an appeal by the applicants against a decision not to grant them Regional Employer Nomination (Permanent) visas (Subclass 187). The core of the dispute revolved around whether the applicant met the health criteria stipulated in Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994. The Tribunal was required to determine if the applicant was free from diseases or conditions that could impact the Australian community, specifically in terms of healthcare costs.

The legal issue before the Tribunal was whether the applicant satisfied PIC 4005, as it applied to the Subclass 187 visa. This criterion, in relevant part, requires an applicant to be free from a disease or condition that would likely require health care or community services, and where the provision of such services would likely result in significant cost to the Australian community. The Tribunal had to consider a Medical Officer of the Commonwealth's (MOC) assessment regarding the applicant's asymptomatic chronic viral Hepatitis B.

The Tribunal reasoned that if a MOC report is valid, it is bound to accept its findings. In this instance, the MOC provided an updated report on 4 March 2019, opining that the applicant's condition, asymptomatic chronic viral Hepatitis B, would likely require health care and community services resulting in significant cost to the Australian community during the period of permanent residence. The Tribunal confirmed that the applicants understood the implications of this medical opinion and the visa requirements. Based on the MOC's opinion, the Tribunal concluded that the applicant did not satisfy PIC 4005(1)(c)(ii)(A), and consequently, could not meet the primary visa criterion cl.187.235(1).

Accordingly, the Tribunal affirmed the decision not to grant the applicants the Subclass 187 visas. The Tribunal further found that the second applicant, as a family member, also did not meet the secondary visa criteria and had not met the primary criteria in her own right.