Malik (Migration)

This matter concerned an application for a Contributory Aged Parent (Residence) (Class DG) visa, Subclass 864. The applicant had previously been assessed by a Medical Officer of the Commonwealth (MOC) as not meeting the health criteria due to severe non-Hodgkin lymphoma, which was deemed likely to result in significant cost to the Australian community. However, a subsequent opinion from a MOC assessed the applicant as meeting the health criteria. The Federal Circuit Court, through Member Wendy Banfield, was required to determine whether the applicant met Public Interest Criterion (PIC) 4005.

The central legal issue was whether the applicant satisfied PIC 4005, specifically subclause (1)(c), which relates to being free from a disease or condition that would likely require significant health or community services, resulting in substantial cost to the Australian community or prejudice access for citizens and permanent residents. The court also considered the weight to be given to a MOC's opinion under regulation 2.25A of the Migration Regulations 1994, which generally requires the Tribunal to accept such an opinion as correct, provided the MOC has applied the correct statutory test.

The Tribunal reasoned that while a MOC opinion is generally binding, it must first be satisfied that the MOC applied the correct test. In this instance, a subsequent MOC opinion indicated the applicant met the health criteria. Given this, and that the applicant was applying for a permanent visa, the exclusion provision in PIC 4005(3) did not apply. The Tribunal concluded that the matter should be remitted for reconsideration, with a specific direction that the applicant met PIC 4005(1)(c) for the purposes of the visa criteria.