Gonzales (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, where the applicant sought review of a decision regarding their eligibility. The core dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4005, which requires visa applicants to be free from certain diseases or conditions that could pose a threat to public health or community services in Australia. The review was conducted by a Member of the Tribunal.

The Tribunal was required to determine if the applicant satisfied PIC 4005(1)(a), (b), and (c) of the Migration Regulations 1994. Specifically, this involved assessing whether the applicant was free from tuberculosis, free from diseases or conditions that could be a threat to public health or the Australian community, and free from diseases or conditions that would likely require significant health care or community services, or prejudice access to such services for Australian citizens or permanent residents. A key legal issue was the role and weight of a Medical Officer of the Commonwealth's (MOC) opinion in this assessment, and whether the Tribunal was satisfied that the MOC had applied the correct test in forming their opinion.

The Tribunal reasoned that under regulation 2.25A, it must seek the opinion of a MOC unless specific exceptions apply. In this instance, a MOC opinion was required. The Tribunal had before it a Form 884, an opinion from a Review Medical Officer of the Commonwealth, which stated that the applicant met the health requirement for one year, based on available medical and radiological reports. The Tribunal noted that while it must take a MOC's opinion as correct, it must first be satisfied that the MOC applied the correct test, citing *Robinson v MIMIA* and *Ramlu v MIMIA*. Based on the MOC's opinion, the Tribunal concluded that the applicant satisfied PIC 4005(1)(c).

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa, Subclass 600, to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that for the purposes of clause 600.213 of Schedule 2 to the Regulations, the applicant meets PIC 4005(1)(c).