Appleton (Migration)

This matter concerned an application for a Contributory Aged Parent (Residence) (Class DG) visa, subclass 864. The applicant, a 75-year-old individual diagnosed with asymptomatic Polycythaemia vera, sought to satisfy the health criteria stipulated by Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994. The Tribunal was tasked with determining whether the applicant met these requirements.

The central legal issue before the Tribunal was whether the applicant was free from diseases or conditions that would render them ineligible for the visa under PIC 4005. Specifically, the Tribunal had to consider whether the applicant's condition would likely require health care or community services, and if the provision of such services would result in significant cost to the Australian community or prejudice access for Australian citizens and permanent residents. The Tribunal was also required to determine if a Medical Officer of the Commonwealth (MOC) opinion was necessary and, if so, to treat that opinion as correct, provided it was formed in accordance with the statutory criteria.

The Tribunal reasoned that PIC 4005(1)(c) applied to the applicant's permanent visa application, meaning the exclusion provisions for temporary visas were not relevant. As the applicant's condition, Polycythaemia vera, was likely to require ongoing specialist care, a MOC opinion was deemed necessary. The Tribunal noted that while a MOC opinion is generally taken as correct, it must be satisfied that the MOC applied the correct legal test in forming their opinion. In this instance, the MOC opinion indicated that the applicant's condition would likely necessitate long-term specialist care services, which would result in significant costs to the Australian community and potentially prejudice access for others.

Consequently, as the applicant had not satisfied the requirements of PIC 4005, the Tribunal affirmed the decision under review. The applicant was therefore not granted the Contributory Aged Parent (Residence) visa.