CLARK (Migration)

This matter concerned an application for a Contributory Aged Parent (Residence) (Class DG) visa, subclass 864. The applicant sought review of a decision not to grant the visa. The central issue before the Tribunal was 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). Specifically, this involved assessing 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 likely to require significant health or community services, leading to substantial costs or prejudice to Australian citizens and permanent residents. The Tribunal also had to consider whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it was correctly applied.

The Tribunal reasoned that PIC 4005, as it applied to a permanent visa application, did not contain the exclusions available for temporary visas. The applicant suffered from severe functional impairment, necessitating a MOC opinion. Under regulation 2.25A, the Tribunal must accept a MOC opinion as correct, provided it is satisfied the MOC applied the correct statutory test. However, the applicant had not responded to an invitation under section 359A of the Migration Act 1958, which would have allowed for the provision of necessary information or a medical assessment. Consequently, the applicant had failed to satisfy the requirements of PIC 4005.

The Tribunal affirmed the decision under review, concluding that the applicant had not met the health criteria for the grant of the Contributory Aged Parent (Residence) visa.