1724247 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, which had been refused on the grounds that the applicant failed to meet Public Interest Criterion (PIC) 4007, relating to health requirements. The applicant had been diagnosed with a medical condition in November 2015. The review was before the Tribunal, with Adrienne Millbank as the Member.

The primary legal issue before the Tribunal was whether the visa applicant met PIC 4007, which requires an applicant to be free from certain diseases or conditions that could pose a threat to public health or the Australian community, or that would likely result in significant costs or prejudice access to health services. The Tribunal was required to consider whether a Medical Officer of the Commonwealth (MOC) opinion was necessary and, if so, to treat that opinion as correct, provided the MOC had applied the correct statutory test. The Tribunal also had to consider whether compelling and compassionate circumstances existed to waive the health requirement, as the applicant was applying for a permanent visa, meaning the exemption in PIC 4007(1B) did not apply.

The Tribunal reasoned that a MOC opinion was required in this case. It noted that while a MOC opinion must be taken as correct, the Tribunal must first be satisfied that the MOC applied the correct test, referencing *Robinson v MIMIA* and *Ramlu v MIMIA*. The Tribunal found that the MOC opinion provided did not sufficiently identify the medical condition or the form or level of the condition suffered by the applicant, nor did it clearly demonstrate that the MOC had applied the statutory criteria by reference to a hypothetical person with that condition. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration by the Minister, with a direction that the visa applicant met PIC 4007(2)(b) for the purposes of clause 309.225 of Schedule 2 to the Regulations. This indicated that the Minister was to consider the remaining criteria for the visa, implying that the waiver provision for compelling and compassionate circumstances was to be assessed.