OCHOA (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (subclass 187) under the Direct Entry stream. The applicant sought review of a decision by the Migration Review Tribunal (the Tribunal) which affirmed the refusal of their visa application. The refusal was based on an adverse opinion from a Medical Officer of the Commonwealth (RMOC) concerning Public Interest Criterion (PIC) 4005.

The primary legal issue before the court was whether the Tribunal had correctly applied the law in considering the RMOC's opinion. Specifically, the court had to determine if the Tribunal was satisfied that the RMOC had applied the correct test in forming their opinion, which requires identifying the medical condition, its form and severity, and assessing it against the criteria for a hypothetical person with that condition. The court also considered whether the Tribunal erred in its handling of the applicant's responses and requests for extensions of time to address the RMOC's opinion.

The Tribunal was required to take the RMOC's opinion as correct under regulation 2.25A(3) of the Migration Regulations 1994, but only after being satisfied that the RMOC had applied the correct test. The applicant argued that the RMOC's report was invalid for various reasons, including failing to consider specific reports and statutory declarations, and that the finding of "moderately severe functional and learning impairment" was not justified. The Tribunal considered these submissions and ultimately found that while it had given consideration to the applicant's detailed responses, the RMOC's opinion, as it stood, led to the conclusion that the applicant did not meet PIC 4005.

As a result of its findings, the Tribunal determined that it was appropriate to refer the case to the Minister for consideration of discretionary intervention powers under section 351 of the Migration Act 1958. The Tribunal affirmed the decision not to grant the visa.