Pine (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804, by two applicants. The primary dispute before the Tribunal was whether the second applicant met the health requirements stipulated by Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994. The second applicant suffered from advanced chronic renal disease, which was likely to require long-term specialist health-care services.

The legal issues before the Tribunal were whether the second applicant was free from diseases or conditions that would likely require significant health care or community services, and whether the provision of such services would result in a significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. Crucially, the Tribunal was required to determine whether it was bound by the opinion of a Medical Officer of the Commonwealth (MOC) regarding the second applicant's health status, given that the application was for a permanent visa.

The Tribunal reasoned that PIC 4005(1)(c) applied to permanent visa applications without the exclusions available for temporary visas. It noted that under regulation 2.25A, where a MOC opinion is required, the Tribunal must take that opinion as correct, provided the MOC applied the correct statutory criteria. In this instance, a MOC opinion was required and obtained. The MOC's opinion indicated that the second applicant's condition would likely require significant health care services, leading to substantial costs for the Australian community and potentially prejudicing access for citizens and permanent residents. The Tribunal found no discretion to waive this requirement.

Consequently, as the second applicant did not satisfy PIC 4005, the Tribunal concluded that the applicants did not meet the requirements of clause 804.226 of the Migration Regulations. The Tribunal affirmed the decision not to grant the Aged Parent (Residence) (Class BP) visas.