T & L Global Food Supply Pty Ltd (Migration)

This matter concerned an appeal by T & L Global Food Supply Pty Ltd regarding a Temporary Business Entry (Class UC) visa, Subclass 457, for Phu. The primary dispute revolved around whether Phu met the health criteria for the visa, specifically Public Interest Criterion (PIC) 4006A, and whether the sponsor, T & L Global Food Supply Pty Ltd, had the financial capacity to meet the costs associated with Phu's medical condition. The decision was made by Kate Millar, a Member of the Tribunal.

The legal issues before the Tribunal were whether Phu met PIC 4006A, which requires an applicant to be free of a disease or condition that would likely result in significant costs to the Australian community or prejudice access to health services for Australian citizens or permanent residents. The Tribunal was also required to consider whether the sponsor had the financial capacity to meet the costs of Phu's condition, a factor relevant to waiving the PIC 4006A requirement. A key procedural issue was the proper consideration of the opinion of a Medical Officer of the Commonwealth (MOC), which the Tribunal must take as correct if it is satisfied the MOC applied the correct test.

The Tribunal reasoned that while an initial MOC opinion was incomplete, a subsequent opinion provided after the hearing, dated 9 August 2016, met the requirements of *Robinson v MIMIA* and *Ramlu v MIMIA*. This later opinion identified Phu's condition, its form or level, and applied the statutory criteria by reference to a hypothetical person. The Tribunal was satisfied that the estimated cost to the Australian community was $422,000. However, in light of further information regarding T & L Global Food Supply Pty Ltd's financial affairs and an undertaking from its managing director to meet the costs of Phu's condition, the Tribunal was satisfied that PIC 4006A(1)(c) should be waived.

Consequently, the Tribunal remitted Master Phu Tran’s application for a Subclass 457 visa for reconsideration, with a direction that he meets PIC 4006A for the purposes of cl.457.325(d) of Schedule 2 to the Regulations.