Huda (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804. The applicant sought review of a decision not to grant the visa. The primary issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4005, which requires applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community.

The legal issues before the Tribunal were whether the applicant was free from tuberculosis, free from a disease or condition that posed a threat to public health or the Australian community, and free from a disease or condition that would likely require significant health care or community services, resulting in substantial cost or prejudice to access for Australian citizens or permanent residents. The Tribunal was required to consider the opinion of a Medical Officer of the Commonwealth (MOC) in determining these matters, as per regulation 2.25A of the Migration Regulations 1994.

The Tribunal considered two MOC opinions. The first, from November 2018, indicated the applicant had severe chronic kidney disease requiring haemodialysis, which could impact the community. The Tribunal subsequently requested an updated MOC opinion, which was received on 2 November 2020. This second opinion confirmed that the applicant did not meet the health requirement under PIC 4005. The Tribunal accepted that compassionate circumstances existed due to the applicant's age and health, but it decided not to refer the case for Ministerial intervention under section 351 of the Migration Act 1958. The Tribunal noted that a Medical Treatment visa pathway was available and that the applicant could make a direct request to the Minister.

The Tribunal affirmed the decision not to grant the applicant the Aged Parent (Residence) visa.