Bate (Migration)

This matter concerned an appeal by the applicants for a Skilled Nominated (Permanent) visa (Class SN) subclass 190. The central dispute revolved around whether the second applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from diseases or conditions that could impose a significant cost on Australian health and community services. The applicants had disclosed that the second applicant suffered from ankylosing spondylitis.

The Tribunal was required to determine if the second applicant was free from a disease or condition that would likely require health care or community services, and if the provision of such services would likely result in a significant cost to the Australian community or prejudice access for Australian citizens and permanent residents. The Tribunal also had to consider the role of a Medical Officer of the Commonwealth (MOC) opinion in this assessment, as regulation 2.25A of the Migration Regulations 1994 mandates that such opinions, when required, must be taken as correct.

The Tribunal reasoned that a MOC opinion was necessary in this case to assess the impact of the ankylosing spondylitis against the criteria in PIC 4005(1)(c). While acknowledging that a MOC opinion is generally taken as correct, the Tribunal emphasised that it must first be satisfied that the MOC applied the correct legal test in forming their opinion, referencing case law such as *Robinson v MIMIA* and *Ramlu v MIMIA*. As the MOC opinion had not yet been obtained or properly considered in light of the correct legal test, the Tribunal concluded that it could not definitively determine whether PIC 4005 had been met.

Consequently, the Tribunal remitted the application for reconsideration of the remaining visa criteria, with a specific direction that the first applicant met the health criteria under PIC 4005 for the purposes of clause 190.216(3) of Schedule 2 to the Regulations. This indicated that the assessment of PIC 4005 for the second applicant remained outstanding and required further determination.