Dinh (Migration)

This matter concerned a review applicant seeking an Aged Parent (Residence) (Class BP) visa, subclass 804. The central dispute revolved around whether the visa applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from certain diseases or conditions that could impact the Australian community. The Administrative Appeals Tribunal was tasked with determining this issue.

The primary legal question before the Tribunal was whether the visa applicant satisfied PIC 4005(1)(c), specifically whether she was free from a disease or condition likely to require health care or community services, the provision of which would result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. A further issue was whether the Tribunal was required to seek and accept the opinion of a Medical Officer of the Commonwealth (MOC) and, if so, whether the MOC had applied the correct legal test in forming their opinion.

The Tribunal was bound by regulation 2.25A to seek the opinion of a MOC when considering a permanent visa application where there was information suggesting the applicant might not meet the health requirements. The Tribunal noted that while it must take the MOC's opinion as correct, it must first be satisfied that the MOC applied the correct statutory criteria. In this instance, a MOC opinion was obtained, which concluded that PIC 4005(1)(c)(ii)(A) had not been met. The Tribunal considered the MOC's opinion in light of the applicant's additional medical report, which had been provided to the MOC.