House (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (Subclass 187) by Ms House and her partner, Mr Wake. The primary dispute before the Tribunal was whether the applicants met the health criteria, specifically Public Interest Criterion (PIC) 4005, as required for the visa grant.

The legal issue before the Tribunal was whether the secondary applicant, Mr Wake, satisfied PIC 4005. This criterion requires an applicant to be free from certain diseases or conditions that could pose a threat to public health, be a danger to the Australian community, or necessitate significant health or community services, thereby incurring substantial costs or prejudicing access for Australian citizens and permanent residents. The Tribunal was required to determine if Mr Wake's diagnosed condition, 'Asymptomatic ulcerative colitis', meant he failed to meet PIC 4005(1)(c)(ii)(A).

The Tribunal reasoned that under regulation 2.25A of the Migration Regulations 1994, where a Medical Officer of the Commonwealth (MOC) provides an opinion regarding an applicant's health, the Tribunal must accept that opinion as correct, provided it is satisfied the MOC applied the correct test. In this instance, a MOC had provided an updated opinion on 1 March 2019, stating that Mr Wake did not satisfy PIC 4005(1)(c)(ii)(A) due to his asymptomatic ulcerative colitis, which would require long-term medical care. As the applicants had applied for a permanent visa, the exclusion provisions in PIC 4005(3) did not apply.

The Tribunal affirmed the decision not to grant the applicants' Regional Employer Nomination (Permanent) visas. This was because the secondary applicant, Mr Wake, did not meet the health criteria as required by PIC 4005, and the Tribunal was bound to accept the MOC's opinion to this effect. Consequently, the visa requirements for the Direct Entry stream had not been met.