Gomez (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Aged Parent (Residence) (Class BP) visa, subclass 804. The applicant, who was 91 years old, had been seeking this visa for 11 years. The core dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4005, specifically the requirement to be free from certain diseases or conditions that could impact the Australian community.

The Tribunal was required to determine if the applicant satisfied PIC 4005(1)(c), which mandates that an applicant be free from diseases or conditions likely to require significant healthcare or community services, or that would prejudice access to such services for Australian citizens or permanent residents. The Tribunal also had to consider whether a Medical Officer of the Commonwealth (MOC) opinion was required and, if so, whether it had been correctly obtained and applied.

The Tribunal reasoned that a MOC opinion was necessary in this case. It noted that while a MOC opinion must be accepted as correct, the Tribunal must first be satisfied that the MOC applied the correct legal test. The Tribunal found that the MOC's final opinion, dated 3 January 2018, was valid as it identified the medical condition, specified the applicant's form or level of the condition, and applied the statutory criteria by reference to a hypothetical person with that condition. Consequently, the Tribunal was bound to accept the MOC's conclusion that the applicant did not satisfy PIC 4005(1)(c)(ii)(A).