Simpson (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision to refuse an Employer Nomination (Permanent) visa (Subclass 186) under the Direct Entry stream. The primary applicant had applied for the visa, with a member of their family unit, their son, listed as a secondary applicant. The dispute centred on whether the secondary applicant met the health requirements stipulated by Public Interest Criterion (PIC) 4005 of the Migration Regulations 1994.

The Tribunal was required to determine whether the secondary applicant satisfied PIC 4005, specifically subclause (1)(c)(ii)(A), which relates to the likelihood of requiring health care or community services that would result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. The Tribunal also had to consider the weight to be given to opinions provided by a Medical Officer of the Commonwealth (MOC) in assessing compliance with PIC 4005.

The Tribunal's reasoning focused on the mandatory nature of PIC 4005 for permanent visa applications and the role of MOC opinions. It noted that for permanent visa applications, the exclusion provisions in PIC 4005(3) did not apply. The Tribunal was bound by a MOC's opinion under regulation 2.25A, provided the MOC had applied the correct test, as established in cases like *Robinson v MIMIA* and *Ramlu v MIMIA*. In this instance, multiple MOC opinions had been obtained, all concluding that the secondary applicant did not meet the requirements of PIC 4005(1)(c)(ii)(A). The Tribunal found that the MOC had applied the correct test in forming these opinions.

Consequently, the Tribunal affirmed the decision under review, meaning the applicants were not granted the Employer Nomination (Permanent) visas.