1930254 (Migration)

This matter concerned an appeal by an applicant for a Subclass 186 Employer Nomination Scheme visa against a decision to refuse the visa. The dispute centred on whether the second applicant, a member of the primary applicant's family unit, met Public Interest Criterion (PIC) 4005, which is a health requirement for the visa. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was to determine if the second applicant satisfied PIC 4005(1)(c)(ii)(A) of the Migration Regulations 1994. This criterion requires that a disease or condition from which an applicant might suffer would not be likely to result in significant cost to the Australian community in terms of health care and community services. The Tribunal was also required to consider whether a Medical Officer of the Commonwealth (MOC) opinion, which had found that the second applicant did not meet PIC 4005, had been formed correctly, specifically whether the MOC had applied the correct test by referencing the statutory criteria against a hypothetical person with the identified condition.

The Tribunal reasoned that while it must generally accept a MOC opinion as correct, it must first be satisfied that the MOC applied the correct test in forming that opinion, citing relevant case law. The Tribunal found that the MOC opinion in this instance did not sufficiently identify the specific medical condition or the form and 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 Employer Nomination (Permanent) visas for reconsideration, with the direction that the second named applicant meets PIC 4005(1)(c) for the purposes of clause 186.235 of Schedule 2 to the Regulations.