Sleiman (Migration)

This matter concerned an appeal by the applicant, Sleiman, against a decision to affirm the refusal of an Aged Parent (Residence) (Class BP) visa, subclass 804. The central dispute revolved around whether the applicant satisfied Public Interest Criterion (PIC) 4005, which requires applicants to meet certain health criteria. The applicant suffers from multiple sclerosis (MS). The decision was made by the Tribunal, with Member David Crawshay presiding.

The legal issues before the Tribunal were whether the applicant was free from tuberculosis, free from a disease or condition that posed a threat to public health or a danger to the Australian community, and free from a disease or condition that would likely require significant health or community services, or prejudice access to such services for Australian citizens or permanent residents. The Tribunal was also required to determine if a Medical Officer of the Commonwealth (MOC) opinion was necessary and, if so, whether it had been correctly applied.

The Tribunal reasoned that PIC 4005, as it applied to permanent visa applications, did not contain the exclusions available for temporary visas. It noted that for permanent visas, a MOC opinion is generally required unless specific exceptions apply, and that such an opinion, once obtained, must be taken as correct, provided the MOC applied the correct statutory test. The Tribunal found that a MOC opinion was required in this case. While acknowledging the difficult circumstances faced by the applicant's family, as evidenced by statutory declarations detailing the applicant's involvement in their grandchildren's lives, the Tribunal ultimately affirmed the decision not to grant the visa. The Tribunal also considered, but declined to make, a referral for ministerial intervention under section 351 of the Act, noting that the applicants could make their own request.