Moshi (Migration)

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, specifically Subclass 143. The applicant had a moderate to severe intellectual impairment due to Down syndrome. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met Public Interest Criterion (PIC) 4005, which mandates that applicants be free from certain diseases or conditions that could impact public health or community services in Australia.

The primary legal issue before the Tribunal was whether a Medical Officer of the Commonwealth (MOC) opinion was required to assess the applicant's compliance with PIC 4005, and if so, whether the existing MOC opinion, if any, was sufficient. PIC 4005 requires applicants to be free from tuberculosis, diseases posing a threat to public health or the Australian community, and conditions likely to require significant health or community services at significant cost or prejudice access for Australian citizens or residents. For permanent visa applications, the exclusions for certain health and community services applicable to temporary visas do not apply.

The Tribunal reasoned that Regulation 2.25A of the Migration Regulations 1994 mandates the Tribunal to seek the opinion of a MOC when assessing PIC 4005 for permanent visa applications, unless specific exceptions apply. In this case, given the applicant's moderate to severe intellectual impairment, a MOC opinion was required. The Tribunal noted that while it must accept a MOC opinion as correct, it must first be satisfied that the MOC applied the correct legal test, identifying the specific medical condition and assessing it against the statutory criteria. The Tribunal found that a MOC opinion was indeed required and that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for a Subclass 143 (Contributory Parent) visa for reconsideration, with a direction that the first named visa applicant meets PIC 4005 for the purposes of clause 143.229 of Schedule 2 to the Regulations.