Sarabia (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa by Mr Marlou Batayola Sarabia. The dispute before the Tribunal was whether the applicant met the health criteria, specifically Public Interest Criterion (PIC) 4007, as required for the visa. The Tribunal, constituted by Member Penelope Hunter, was tasked with reviewing the decision regarding the applicant's eligibility.

The primary legal issue before the Tribunal was to determine if the visa applicant was free from tuberculosis and from any disease or condition that could pose a threat to public health in Australia or a danger to the Australian community, or that would likely result in significant costs to the community or prejudice access to health services for Australian citizens and permanent residents. This involved an assessment of the applicant's medical condition, which was initially identified as stable chronic renal disease with a renal transplant. The Tribunal also had to consider the requirement to obtain and rely upon the opinion of a Medical Officer of the Commonwealth (MOC) unless specific exceptions applied.

The Tribunal reasoned that for permanent visa applications, the exemption provisions for certain health care and community services under PIC 4007(1B) did not apply. Furthermore, Regulation 2.25A mandates that the Tribunal must seek the opinion of a MOC and, where such an opinion is obtained, it must be taken as correct. In this instance, the applicant had provided a subsequent cleared assessment upon review. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a specific direction that the first applicant meets PIC 4007(1) for the purposes of clause 186.224(2) of Schedule 2 to the Regulations.