1729745 (Migration)

This matter concerned an application for a Skilled Nominated (Permanent) visa (subclass 190). The central dispute revolved around whether the second named applicant met Public Interest Criterion (PIC) 4005, which requires visa applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community. The Tribunal was required to determine if the applicant satisfied PIC 4005(1)(c) in light of an adverse Medical Officer of the Commonwealth (MOC) opinion.

The legal issues before the Tribunal were whether a MOC opinion was required, and if so, whether the MOC had applied the correct test in forming its opinion. The Tribunal was bound by regulation 2.25A to seek a MOC opinion for permanent visa applications unless specific exceptions applied, and to treat that opinion as correct. However, the Tribunal retained the responsibility to be satisfied that the MOC had applied the correct statutory criteria when forming their opinion, which necessitates identifying the specific medical condition, its form or level, and assessing it against the relevant public interest criterion.

The Tribunal found that a MOC opinion was indeed required for this permanent visa application. While the Tribunal must generally accept a MOC opinion as correct, it must first ensure the MOC has applied the correct test, as established in cases such as *Robinson v MIMIA* and *Ramlu v MIMIA*. The initial MOC opinion was considered invalid because it did not sufficiently identify the exact form or level of the applicant's medical condition or demonstrate that the MOC had applied the statutory criteria by reference to a hypothetical person with that specific condition. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for Skilled Nominated (Permanent) visas for reconsideration, directing that the second named applicant be considered to meet PIC 4005(1)(c) for the purposes of clause 190.216 of Schedule 2 to the Migration Regulations 1994.