Cho (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (Subclass 187) by an applicant who was unable to satisfy the delegate that they met the health criteria due to suffering from an asymptomatic chronic medical condition. The Tribunal was required to determine whether the applicant met Public Interest Criterion (PIC) 4005, which mandates that applicants be free from certain diseases or conditions that could impose a significant cost on the Australian community through healthcare and community services.

The primary legal issue before the Tribunal was the interpretation and application of PIC 4005, specifically subclauses (1)(a), (b), and (c), in the context of a permanent visa application. This involved considering whether the applicant's asymptomatic chronic medical condition would likely require health care or community services, and if so, whether the provision of such services would result in significant costs to the Australian community or prejudice access for Australian citizens and permanent residents. The Tribunal also had to consider the requirement to obtain and correctly apply the opinion of a Medical Officer of the Commonwealth (MOC) under regulation 2.25A of the Migration Regulations 1994.

The Tribunal reasoned that for permanent visa applications, the exclusion provisions in PIC 4005(3) did not apply. It noted that under regulation 2.25A, the Tribunal must seek a MOC opinion unless specific exceptions apply, and that such an opinion, once obtained, must be taken as correct, provided the MOC applied the correct statutory test. The Tribunal found that a MOC opinion was required in this case. However, it concluded that the matter should be remitted for reconsideration, directing that the applicant met PIC 4005(1)(c)(ii)(A) for the purposes of clause 187.235 of Schedule 2 to the Regulations.