1721021 (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an applicant for a Contributory Aged Parent (Residence) (Class DG) visa, subclass 864. The dispute centred on whether the applicant met Public Interest Criterion (PIC) 4005, which relates to health requirements for visa applicants. The delegate had previously found that the applicant did not satisfy this criterion.

The primary legal issue before the Tribunal was to determine if the applicant was free from diseases or conditions that would result in a significant cost to the Australian community in terms of health care and community services, as stipulated by PIC 4005(1)(c)(ii)(A). This criterion requires that the provision of such services would be likely to incur costs exceeding $40,000. The Tribunal also considered whether the applicant met the requirements of PIC 4005(1)(a) and (b), which relate to freedom from tuberculosis and threats to public health.

The Tribunal's reasoning was guided by Regulation 2.25A of the Migration Regulations 1994, which mandates that for permanent visa applications, the Tribunal must seek the opinion of a Medical Officer of the Commonwealth (MOC) unless specific exceptions apply. The Tribunal noted that the exclusion provision in PIC 4005(3), which applies to temporary visas, did not apply in this case as the applicant sought a permanent visa. Based on the most recent opinion from the MOC, the Tribunal concluded that the applicant did not satisfy PIC 4005(1)(c).

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not met the necessary criteria for the visa grant. Despite this outcome, the Tribunal acknowledged the applicant's request for referral to the Minister for intervention under section 351 of the Migration Act 1958. The Tribunal considered that the case presented unique and exceptional circumstances, including strong compassionate factors related to the applicant's age, health, and the hardship that would result from a failure to recognise these circumstances, which might warrant ministerial consideration.