Lund (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa. The primary applicant was Mr Jason Lund, and the dispute centred on whether his son, Mr Ciaran Lund, a secondary applicant and member of the family unit, satisfied Public Interest Criterion (PIC) 4007. The Tribunal was required to determine if Mr Ciaran Lund, who has a mild cognitive impairment, met the health requirements stipulated by PIC 4007.

The Tribunal considered whether Mr Ciaran Lund was free from tuberculosis, a disease or condition that could pose a threat to public health or a danger to the Australian community, and a disease or condition likely to require significant health or community services resulting in substantial cost or prejudice to Australian citizens or permanent residents. The Tribunal noted that for permanent visa applications, the exemption in PIC 4007(1B) did not apply. It also acknowledged the requirement under regulation 2.25A to seek the opinion of a Medical Officer of the Commonwealth (MOC) unless specific exceptions applied, and that such an opinion, once obtained, must be taken as correct, provided the MOC applied the correct test.

The Tribunal found that a MOC opinion was required in this case. However, it concluded that the existing MOC opinion was not sufficient to determine whether Mr Ciaran Lund met PIC 4007, as it was not clear that the MOC had applied the correct statutory criteria to the specific form and level of the applicant's condition. Consequently, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal remitted the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that Mr Ciaran James Lund meets PIC 4007 for the purposes of clause 186.224(2) of Schedule 2 to the Regulations.