Ford (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804. The applicant's husband, who had previously been a member of her family unit, had not met the health criteria under Public Interest Criterion (PIC) 4005 due to moderate dementia. However, the husband was now deceased, meaning he was no longer considered a member of the applicant's family unit for the purposes of the visa application. The review before the Tribunal was whether the applicant herself met the health criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied Public Interest Criterion 4005, which requires an applicant 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 through healthcare and community services. Specifically, the Tribunal had to determine if the applicant met the requirements of PIC 4005(1)(a), (b), and (c), which relate to freedom from tuberculosis, threats to public health, and conditions likely to require significant healthcare or community services. The Tribunal also considered the requirement to obtain an opinion from a Medical Officer of the Commonwealth (MOC) and the weight to be given to such an opinion.

The Tribunal reasoned that as the applicant's husband was deceased, he was no longer a member of her family unit, and the application now solely concerned the applicant's own health status. The Tribunal noted that for permanent visa applications, the exclusion provisions for certain healthcare and community services under PIC 4005(3) did not apply. It was determined that a MOC opinion was required in this case. The Tribunal emphasised that while a MOC opinion is generally taken as correct, it must first be satisfied that the MOC applied the correct statutory test, identifying the medical condition and its form or level, and applying the criteria to a hypothetical person with that condition.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The direction given was that the applicant meets PIC 4005(1) for the purposes of clause 804.225 of Schedule 2 to the Migration Regulations 1994.