Chea (Migration)

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, subclass 143, by Mr Sok Leng Chea and Ms My My Chea. The dispute centred on whether the secondary applicants met the health requirements stipulated by Public Interest Criterion (PIC) 4005, a condition precedent for the grant of the visa. The decision was made by a member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicants were free from tuberculosis, free from any disease or condition that posed a threat to public health or the Australian community, and free from any disease or condition that would likely require significant health or community services, thereby imposing a substantial cost on the Australian community or prejudicing access for Australian citizens and permanent residents. The Tribunal was required to determine if a Medical Officer of the Commonwealth (MOC) opinion was necessary and, if so, to treat it as correct, provided it was formed in accordance with the statutory criteria.

The Tribunal reasoned that PIC 4005, particularly subclauses (1)(a), (b), and (c), imposed strict health requirements on applicants for permanent visas. It noted that for permanent visa applications, the exclusions provided for temporary visas under PIC 4005(3) did not apply. The Tribunal was bound by regulation 2.25A to seek and accept the opinion of a MOC unless specific exceptions applied, which they did not in this instance. The Tribunal found that a MOC opinion was required and that it must be satisfied the MOC applied the correct legal test. As the applicants had not satisfied the requirements of PIC 4005, the Tribunal was compelled to affirm the decisions under review.

Consequently, the Tribunal affirmed the decision not to grant the Contributory Parent (Migrant) (Class CA) visas to the applicants.