Desai (Migration)

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, Subclass 143, by Mrs Desai. The primary dispute before the Administrative Appeals Tribunal was whether Mrs Desai met the health criteria stipulated by Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994.

The Tribunal was required to determine whether Mrs Desai was free from tuberculosis, free from a disease or condition that posed a threat to public health or a danger to the Australian community, and free from a disease or condition that would likely result in significant costs to the Australian community or prejudice access to health services. A key aspect of the determination involved the weight to be given to opinions from a Medical Officer of the Commonwealth (MOC), as required by regulation 2.25A.

The Tribunal noted that while a MOC opinion is generally taken to be correct, the Tribunal must first be satisfied that the MOC applied the correct legal test in forming their opinion. In this instance, a previous MOC opinion had assessed Mrs Desai as not meeting the health criteria. However, a subsequent opinion, dated 16 April 2018, assessed Mrs Desai as meeting the health requirement in PIC 4005. The Tribunal found that this subsequent opinion was sufficient to satisfy the requirement of PIC 4005(1)(c) for the purposes of the visa.

Consequently, the Tribunal remitted the application for reconsideration of the remaining visa criteria, with a direction that Mrs Desai met PIC 4005(1)(c).