Locke (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, subclass 835 (Remaining Relative). The applicant sought review of a decision to refuse the visa, with the central dispute revolving around whether the applicant met Public Interest Criterion (PIC) 4005. The review was conducted by a member of the Tribunal.

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 a danger to the Australian community, and 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. Specifically, the Tribunal had to consider the application of PIC 4005(1)(a), (b), and (c) to the applicant, who suffered from severe functional impairment due to severe dementia.

The Tribunal reasoned that for permanent visa applications, the exclusion provisions in PIC 4005(3) did not apply. Regulation 2.25A of the Migration Regulations 1994 required the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless specific exceptions applied, and where such an opinion was sought, it was to be taken as correct. The Tribunal noted that it must be satisfied that the MOC applied the correct test in forming their opinion, referencing case law to support this requirement. In this instance, a MOC opinion was required, and the Tribunal was bound to accept it as correct, provided it was properly formed.

As the applicant had not satisfied the requirements of PIC 4005, the Tribunal affirmed the decision under review, meaning the visa was not granted.