Tan (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)), brought before the Tribunal. The central dispute revolved around whether the applicant met the health criteria, specifically Public Interest Criterion (PIC) 4007, which requires an applicant to be free from certain diseases or conditions that could necessitate significant health or community services, or pose a threat to public health.

The Tribunal was required to determine if the applicant satisfied PIC 4007, which involves being free from tuberculosis, diseases posing a threat to public health or the Australian community, and conditions likely to require health or community services resulting in significant cost or prejudice to Australian citizens or permanent residents. The Tribunal also had to consider the requirement to obtain an opinion from a Medical Officer of the Commonwealth (MOC) and whether such an opinion was correctly obtained and applied, noting that where an MOC opinion is required, it must be taken as correct.

The Tribunal reasoned that while the applicant had been diagnosed with asymptomatic chronic viral Hepatitis B, which initially led to the Commonwealth Medical Officer advising that the health requirement was not met, further medical evidence and an offer for a subsequent MOC assessment had been provided. The Tribunal acknowledged that it must take the MOC's opinion as correct when one is required. Given the provision of new evidence and the opportunity for a further MOC assessment, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for the Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)), for reconsideration. The direction was that the applicant meets PIC 4007, subject to providing a signed undertaking in accordance with PIC 4007(1)(d).