Chen (Migration)

This matter concerned an appeal by Mr Jiazhi Chen against the delegate's decision to refuse his application for a Subclass 189 Skilled Independent visa. The delegate had refused the application on the basis that Mr Chen did not meet the criteria for the visa, specifically clause 189.225 of Schedule 2 of the Migration Regulations. The Tribunal was required to review this decision.

The central legal issue before the Tribunal was whether Mr Chen satisfied Public Interest Criterion 4005, which requires an applicant to be free from a disease or condition that would likely necessitate health care or community services resulting in significant cost to the Australian community. Mr Chen argued that his condition was asymptomatic and well-controlled with treatment, and that the availability of cheaper synthetic drugs overseas meant the cost to the Australian public would not be significant. He also highlighted his long residence in Australia, his employment, and his extensive social and professional networks, suggesting that returning to China would be extremely difficult.

The Tribunal considered the opinion of a Medical Officer of the Commonwealth, which was taken as correct. This opinion, supported by a letter from Mr Chen's treating physician, indicated that Mr Chen had been a patient since 2015, was asymptomatic and well-controlled on his current treatment regime, and had a normal life expectancy if he remained on treatment. The letter also confirmed his adherence to treatment and regular monitoring. However, the Tribunal noted that the regulations did not provide for discretion to consider an applicant's circumstances, such as their length of residence or social ties, when assessing Public Interest Criterion 4005. The criterion focused solely on the likelihood of requiring health care or community services at significant cost to the community.

The Tribunal affirmed the delegate's decision to refuse the visa. It found that the opinion of the Medical Officer of the Commonwealth was that Mr Chen had a condition that would likely require ongoing health care and monitoring, and that this would likely result in a significant cost to the Australian community. The Tribunal concluded that, as there was no discretion to consider Mr Chen's personal circumstances under the relevant criterion, the refusal was correct.