Osmani (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa, Subclass 482, made by the applicant, Osmani. The dispute before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4007, which requires visa applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs or prejudice to community services. The applicant had been diagnosed with autism spectrum disorder (Level 2).

The Tribunal was required to determine if the applicant was free from diseases or conditions as stipulated in PIC 4007(1)(a), (b), and (c). Specifically, it needed to consider whether the applicant's condition would likely require health care or community services, and if the provision of such services would result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. The Tribunal also had to consider whether a waiver of these requirements was applicable under PIC 4007(2).

The Tribunal reasoned that a Medical Officer of the Commonwealth (MOC) opinion was required to assess the applicant's condition against the relevant criteria. However, it found that the MOC opinion provided did not clearly demonstrate that the correct test had been applied, referencing the principles in *Robinson v MIMIA* and *Ramlu v MIMIA*. The Tribunal noted that while it must generally accept a MOC opinion as correct, it must first be satisfied that the MOC applied the statutory criteria by reference to the applicant's specific condition and its form or level. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister.

The Tribunal remitted the application for a GK – Temporary Skill Shortage (Class GK) visa, Subclass 482, for reconsideration. The direction was that the applicant meets PIC 4007(2)(b) for the purposes of clause 482.317(1) of Schedule 2 to the Regulations, indicating that the waiver provisions were to be considered.