1923768 (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, where the applicant failed to meet the health criteria. The review was before Hugh Sanderson, a Member of the Tribunal. The central dispute revolved around whether the applicant satisfied Public Interest Criterion (PIC) 4007, which requires 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 legal issues before the Tribunal were whether the applicant met the requirements of PIC 4007(1)(a), (b), and (c), which relate to being free from tuberculosis, a threat to public health, or a condition likely to require significant health or community services. The Tribunal was also required to determine if a Medical Officer of the Commonwealth (MOC) opinion was necessary and, if so, whether the MOC had applied the correct legal test in forming their opinion, as mandated by regulation 2.25A and case law such as *Robinson v MIMIA* and *Ramlu v MIMIA*. The Tribunal noted that for permanent visa applications, the exemption in PIC 4007(1B) did not apply.

The Tribunal reasoned that a MOC opinion was required in this case. While the Tribunal must accept a MOC opinion as correct, it must first be satisfied that the MOC applied the correct statutory criteria. The Tribunal found that the initial MOC opinion did not adequately demonstrate that the correct test had been applied in relation to the applicant's medical condition. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that for the purposes of PIC 4007(1) for a Subclass 309 visa, the applicant was to be considered as meeting the criteria, implying that a further or corrected MOC opinion would be obtained and considered.