Harsh Bhargav (Migration)

This matter concerned an application for a Skilled Nominated (Permanent) visa (Subclass 190) by Harsh Bhargav. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the health criteria, specifically Public Interest Criterion (PIC) 4005(1)(c) of the Migration Regulations 1994.

The central legal issue before the Tribunal was the interpretation and application of PIC 4005(1)(c), which mandates that an applicant be free from a disease or condition that would likely require significant health or community services, or prejudice access to such services for Australian citizens or permanent residents. The Tribunal was also required to consider the effect of regulation 2.25A, which dictates that where a Medical Officer of the Commonwealth (MOC) opinion is required, the Tribunal must seek and take that opinion as correct.

The Tribunal reasoned that, based on the evidence before it, a MOC opinion was required. It had before it a valid MOC opinion dated 18 November 2021. Applying regulation 2.25A(3), the Tribunal was obliged to take this opinion as correct. The MOC opinion indicated that the applicant satisfied PIC 4005(1)(c). Consequently, the Tribunal found that the applicant met this specific criterion.

Given its finding that the applicant met PIC 4005(1)(c), the Tribunal remitted the application for a Skilled Nominated (Permanent) visa to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that for the purposes of clause 190.216 of Schedule 2 to the Regulations, the applicant was to be taken as meeting PIC 4005(1)(c).