AUNG WIN (Migration)

This matter concerned an application for Contributory Aged Parent (Residence) (Class DG) visas by the applicants, one of whom suffered from severe cognitive and physical impairment. The central dispute revolved around whether the second applicant met Public Interest Criterion 4005, which requires visa 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 Administrative Appeals Tribunal was tasked with reviewing the decision not to grant the visas.

The Tribunal was required to determine if the second applicant satisfied PIC 4005, specifically subclauses (1)(a), (b), and (c), which address freedom from tuberculosis, threats to public health or the Australian community, and conditions likely to require significant health or community services at substantial cost or prejudice access for Australian citizens or permanent residents. The Tribunal also had to consider whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it had been correctly applied, referencing established case law on the MOC's role and the Tribunal's obligation to treat such opinions as correct.

The Tribunal reasoned that while the second applicant's severe impairment, arising from a motor vehicle accident in Australia through no fault of their own, meant they did not meet the health criteria under PIC 4005, the circumstances warranted consideration for ministerial intervention. The Tribunal noted that the costs for the required health care services would be covered by icare lifetime care, irrespective of the applicants' location. Despite this, the Tribunal affirmed the decision not to grant the visas.