2312281 (Migration)

This matter concerned an appeal by a visa applicant against the decision not to grant them a Regional Employer Nomination (Permanent) visa (Subclass 187). The applicant, a citizen of [Country], was nominated by [Employer] T/A [Trading name] for the occupation of [Occupation] ([ANZSCO]). The core of the dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4005, which mandates that applicants be free from certain diseases or conditions that could impose a significant cost on the Australian community through healthcare or community services. The appeal was heard by a member of the Tribunal, Karen McNamara.

The legal issue before the Tribunal was whether the applicant satisfied PIC 4005(1)(c)(ii)(A) of the Migration Regulations 1994. This criterion requires that an applicant be free from a disease or condition that would likely necessitate health or community services, and that the provision of such services would likely result in a significant cost to the Australian community. The applicant had undergone a medical assessment by a Medical Officer of the Commonwealth (MOC) on 3 March 2023, which concluded that the applicant did not meet this criterion due to an asymptomatic HIV infection. The Tribunal was required to determine if the MOC's opinion complied with and was authorised by the relevant regulations, specifically regulation 2.25A.

The Tribunal's reasoning centred on the MOC's assessment and the statutory requirements of PIC 4005. The MOC's report, based on the applicant's medical examination including HIV serology, found that the applicant did not satisfy PIC 4005(1)(c)(ii)(A) for the period of a permanent stay in Australia. The Tribunal noted that the MOC applied the statutory criteria by reference to a hypothetical person with the identified condition. The Tribunal considered that the MOC's opinion was taken as correct and that there was no discretion to waive the criterion, even though the condition was asymptomatic and diagnosed after the application was made, and despite the applicant's crucial contribution to the employer's business.

Ultimately, the Tribunal affirmed the decision not to grant the visa. However, the Tribunal considered it appropriate to refer the case to the Minister for consideration of discretionary intervention powers under section 351 of the Migration Act 1958.