Chen (Migration)

This matter concerned an application for a Skilled Nominated (Permanent) visa (Subclass 190). The applicant had been diagnosed with a specified medical condition and was undergoing a medical assessment as part of the visa application process. The core dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4005, which requires 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 Tribunal was required to determine if the applicant satisfied PIC 4005(1)(a), (b), and (c) of the Migration Regulations 1994. Specifically, it needed to assess whether the applicant was free from tuberculosis, free from diseases or conditions that posed a threat to public health or the Australian community, and free from conditions that would likely require significant health or community services, or prejudice access to such services for Australian citizens or permanent residents. The Tribunal also had to consider whether an opinion from a Medical Officer of the Commonwealth (MOC) was required and, if so, how that opinion should be applied.

The Tribunal reasoned that a MOC opinion was required in this case. It noted that while a MOC opinion must be taken as correct, the Tribunal must first be satisfied that the MOC applied the correct statutory criteria by identifying the medical condition, its form or level, and referencing a hypothetical person with that condition. The Tribunal found that the MOC opinion provided did not sufficiently demonstrate that the correct test had been applied. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Skilled Nominated (Permanent) visa for reconsideration, with a direction that the applicant meets PIC 4005(1)(c) for the purposes of clause 190.216 of Schedule 2 to the Regulations.