Muflih (Migration)

This matter concerned an application for a Sponsored Parent (Temporary) visa (subclass 870). The applicant was initially found not to meet Public Interest Criterion (PIC) 4005, which requires an applicant to be free from certain diseases or conditions that may impact the community. This initial assessment by a Medical Officer of the Commonwealth (MOC) found the applicant had a moderate functional impairment due to gait imbalance, tremor, and poor eyesight, which was likely permanent and would likely require health or community care services, resulting in a significant cost to the Australian community. The delegate refused the visa application on this basis. The Tribunal, however, was provided with a further MOC opinion which concluded that the applicant met the health requirements in PIC 4005, noting the temporary nature of the visa and that the functional impairment was less severe than previously determined.

The legal issue before the Tribunal was whether the applicant met the health requirements of PIC 4005 for the Sponsored Parent (Temporary) visa. This criterion, as relevant to the case, required the applicant to be free from a disease or condition that would likely necessitate health or community services, the provision of which would likely result in a significant cost to the Australian community or prejudice access to such services for citizens and permanent residents. The Tribunal was required to consider the MOC opinions and determine if the applicant satisfied this criterion.

The Tribunal reasoned that the subsequent MOC opinion, which found the applicant met PIC 4005 due to a less severe assessment of functional impairment and the temporary nature of the visa, was determinative. The Tribunal accepted this later opinion, which indicated that the applicant did not present a significant cost or prejudice to community services. Consequently, the Tribunal concluded that the applicant met PIC 4005(1)(c)(ii)(A).

The Tribunal remitted the application for a Sponsored Parent (Temporary) visa for reconsideration by the Minister, with a direction that the visa applicant meets the criteria specified in PIC 4005(1)(c)(ii)(A) for the purposes of clause 870.228 of Schedule 2 to the Regulations.