Gurung (Migration)

This matter concerned an appeal by Mr. Gurung (the applicant) against a decision regarding his application for a Subclass 186 Employer Nomination (Permanent) visa, specifically under the temporary residence transition stream. The central dispute revolved around whether the applicant met the health requirements stipulated by Public Interest Criterion (PIC) 4007 of the Migration Regulations 1994. The case was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine if the applicant was free from diseases or conditions that could pose a threat to public health, endanger the Australian community, or likely result in significant costs to the Australian community through the need for health or community services, or prejudice access to such services for Australian citizens and permanent residents. A key aspect of the determination involved considering the applicant's diagnosis of stable chronic myeloid leukaemia and whether the discretion to waive the health requirement could be exercised in his favour.

The Tribunal reasoned that while the opinion of a Medical Officer of the Commonwealth (MOC) is generally taken as correct in assessing health requirements, the regulations provide for a waiver of the requirement under PIC 4007(2) if the applicant meets all other visa criteria and the Minister is satisfied that granting the visa would be unlikely to result in undue cost or prejudice to access to health care. In this instance, the Tribunal noted that the applicant had a stable chronic myeloid leukaemia, and that he otherwise met the secondary criteria for the visa. The Tribunal also considered factors such as the applicant's compliance with treatment, lack of functional impairment, continued full-time work in a skill shortage sector, long residence and established ties, and access to savings.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met PIC 4007(2)(b) for the purposes of clause 186.224 of Schedule 2 to the Regulations, indicating that the health requirement had been waived.