Colgan (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (Subclass 187) by Mr Colgan and his family. The primary dispute revolved around whether the secondary applicant, Master Sean Colgan, met the health criteria stipulated by Public Interest Criterion (PIC) 4005, which is a requirement for the visa grant. The decision was made by Michelle East, a member of the Tribunal.

The core legal issue before the Tribunal was to determine if Master Colgan satisfied PIC 4005, specifically subclause (1)(c)(ii)(A), which requires an applicant to be free from a disease or condition that would likely necessitate health care or community services, and for the provision of such services to result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. The Tribunal was also required to consider the weight to be given to the opinion of a Medical Officer of the Commonwealth (MOC) in assessing compliance with PIC 4005.

The Tribunal reasoned that a MOC opinion was required and, as per regulation 2.25A(3) of the Migration Regulations 1994, such an opinion must be taken as correct, provided the MOC has applied the correct test. In this instance, an updated MOC report dated 5 February 2019 stated that Master Colgan did not satisfy PIC 4005(1)(c)(ii)(A) due to having 'Mild cystic fibrosis', which would require long-term specialist health care services. The Tribunal noted that the exclusion provision in PIC 4005(3) for certain temporary visas did not apply to this permanent visa application.

Consequently, the Tribunal affirmed the decision not to grant the Subclass 187 visas because the health criteria, as assessed by the MOC and applied to PIC 4005, were not met by the secondary applicant. As the requirements for the visa had not been satisfied, the application was refused.