Kelly (Migration)

This matter concerned a review by the Tribunal of a decision regarding a Partner (Provisional) (Class UF) visa, Subclass 309. The central dispute revolved around whether the visa applicant met the health criteria, specifically Public Interest Criterion (PIC) 4007, which requires an applicant to be free from diseases or conditions that could impose a significant cost on the Australian community or prejudice access to health services.

The Tribunal was required to determine if the applicant met PIC 4007, considering an initial Medical Officer of the Commonwealth (MOC) opinion from 2017 which indicated the applicant did not meet the health requirement. A key legal issue was how to address this older opinion in light of subsequent policy changes by the Department, which had raised the threshold for "significant costs" and reduced the assessment period for permanent conditions.

The Tribunal reasoned that the original MOC opinion was outdated and predated significant policy changes that could potentially alter the assessment of the applicant's health status. These policy changes increased the financial threshold for "significant costs" and limited the assessment period for permanent conditions to 10 years. Consequently, the Tribunal determined that a further MOC opinion was necessary. Upon obtaining an updated opinion in December 2020, which indicated the applicant met the health requirements subject to providing a signed undertaking, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met PIC 4007(1)(d) for the purposes of cl.309.225 of Schedule 2 to the Regulations.