CVM17 v Minister for Immigration

The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) that affirmed a delegate's refusal to grant a Partner (Provisional) (Class UF) visa. The refusal was based on a Medical Officer of the Commonwealth (MOC) opinion that the applicant did not meet the requirements of Public Interest Criterion 4007(1)(c). The applicant contended that the Tribunal erred by considering the MOC opinion to be current and reliable, despite the significant time elapsed between its issuance and the Tribunal's decision.

The central legal issues before the court were whether the Tribunal had adequately considered the currency and reliability of the MOC opinion, whether it was open to the Tribunal to find the opinion current and reliable, and if not, whether the Tribunal had the power to seek a further opinion and acted unreasonably by not doing so. The court also considered whether, assuming the Tribunal did not have such power or did not act unreasonably, its reliance on the MOC opinion was material to its decision.

The court referred to the Full Federal Court's decision in *Minister for Immigration and Multicultural Affairs v Seligman*, which established that a MOC opinion must address the applicant's satisfaction of criteria at the time of the Minister's decision. However, the court noted that in the context of a Tribunal review, a literal interpretation of this qualification is not always practical. Citing *Applicant Y*, the court indicated that a MOC opinion should be current and reliable at the date of the hearing before the Tribunal, and the Tribunal is not necessarily required to obtain a fresh opinion dated precisely when it hands down its decision. The court's reasoning focused on the practical application of the *Seligman* principles to Tribunal reviews, acknowledging the potential for delay between a hearing and a decision.

The application was dismissed.