1826279 (Migration)

This matter concerned an application for a Skilled Independent (Permanent) visa (Subclass 189) by a Nigerian citizen. The applicant's visa was initially refused because the delegate determined that the applicant did not meet the health criteria under Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994. The applicant had been diagnosed with a specified medical condition, and initial assessments by a Medical Officer of the Commonwealth (MOC) concluded that the applicant did not satisfy PIC 4005(1)(c)(ii).

The central legal issue before the Tribunal was whether the applicant met PIC 4005, which requires applicants to be free from certain diseases or conditions that could impose a significant cost on the Australian community or prejudice access to services. This involved considering updated medical opinions and the applicant's provision of a signed undertaking as required by PIC 4005(1)(d). The Tribunal was required to determine if the applicant satisfied the health requirement for a permanent stay in Australia, taking into account the MOC's opinions as conclusive under regulation 2.25A(3).

The Tribunal reasoned that while an earlier MOC opinion found the applicant did not meet PIC 4005(1)(c)(ii), subsequent medical evidence and a further MOC opinion dated 12 February 2019 indicated that the applicant met the health requirement for a permanent stay, provided a signed undertaking in accordance with PIC 4005(1)(d) was submitted. The applicant subsequently provided this undertaking. Applying regulation 2.25A(3), the Tribunal accepted the MOC's final opinion as correct.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant met the health criteria for the Subclass 189 visa.