Mai v Minister for Immigration

The Administrative Appeals Tribunal (AAT) considered the case of Mai and the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant sought review of the Minister's decision to refuse him a Skilled (Residence) (Class VB) visa. The refusal was based on the applicant failing to meet Public Interest Criterion (PIC) 4005, specifically PIC 4005(1)(c), which requires an applicant to be free from a disease or condition that would likely require health care or community services resulting in significant cost to the Australian community or prejudice access for citizens and residents.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4005(1)(c). This required the Tribunal to determine if a Medical Officer of the Commonwealth (MOC) opinion, which indicated the applicant did not meet the criterion, was valid and correctly applied. The Tribunal was bound to accept a valid MOC opinion as correct, provided it applied the correct legal test.

The Tribunal reasoned that, as there was information suggesting the applicant might not meet PIC 4005, it was required to seek a MOC opinion under regulation 2.25A. A Review Medical Officer of the Commonwealth (RMOC) provided an opinion on 10 September 2014, assessing the applicant against PIC 4005 for permanent residency. This opinion identified the applicant's medical condition as asymptomatic HIV infection and concluded that a hypothetical person with this condition, at the same severity, would likely require health care or community services that would result in significant cost to the Australian community. The RMOC outlined the basis for this opinion, including various medical reports and previous MOC assessments. The Tribunal found this RMOC opinion to be valid and therefore binding. Despite the applicant's submissions regarding his personal circumstances, his contributions to the community, and the potential risks of returning to Vietnam, the Tribunal held that the RMOC's assessment of a hypothetical person was determinative and that the applicant's individual circumstances were not relevant to the question of cost to the community.

Consequently, based on the binding RMOC opinion, the Tribunal found that the applicant did not satisfy PIC 4005. As this was a mandatory visa requirement, the Tribunal affirmed the decision under review, meaning the applicant was not granted the Skilled (Residence) (Class VB) visa.