Trinh (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa. The primary applicant had been diagnosed with asymptomatic chronic viral hepatitis B. The dispute before the Tribunal was whether this condition meant the applicant failed to meet Public Interest Criterion (PIC) 4007, which requires applicants to be free from certain diseases or conditions that could pose a threat to public health or result in significant costs to the Australian community.

The Tribunal was required to determine if the applicant met the requirements of PIC 4007(1)(a), (b), and (c) of the Migration Regulations 1994. Specifically, it needed to assess whether the applicant was free from tuberculosis, a disease or condition that could be a threat to public health or a danger to the Australian community, or a disease or condition likely to require health care or community services resulting in significant cost or prejudice to access for Australian citizens or permanent residents. The Tribunal also had to consider whether a waiver of these criteria was applicable, noting that the exemption in PIC 4007(1B) for temporary visas did not apply to this permanent visa application.

The Tribunal reasoned that under regulation 2.25A, it was required to seek and accept the opinion of a Medical Officer of the Commonwealth (MOC) unless specific exceptions applied, which they did not in this case. The Tribunal noted that while it must take the MOC's opinion as correct, it must first be satisfied that the MOC applied the correct statutory test. In this instance, the applicant's diagnosis of chronic viral hepatitis B meant they did not meet the health criteria under PIC 4007. As the primary applicant did not meet the visa criteria, the secondary applicants, who were members of the same family unit, also failed to meet their criteria.

Consequently, the Tribunal affirmed the decision not to grant the Partner (Provisional) (Class UF) visas to the applicants.