Zhang (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, made by a 78-year-old applicant. The Department of Home Affairs delegate refused the visa application on the basis that the applicant did not meet Public Interest Criterion (PIC) 4005, as required by cl.600.213 of Schedule 2 of the Migration Regulations 1994. The review applicant, who is the daughter of the visa applicant and prospective sponsor, sought review of this decision.

The primary legal issue before the Tribunal was whether the visa applicant met PIC 4005, specifically subclause (1)(c)(ii)(A), which requires an applicant to be free from a disease or condition where the provision of health care or community services would be likely to result in a significant cost to the Australian community. The Tribunal was required to consider the opinion of a Medical Officer of the Commonwealth (MOC) in determining this criterion, as mandated by reg.2.25A of the Regulations.

The Tribunal's reasoning centred on the MOC's assessment that the visa applicant did not meet PIC 4005(1)(c)(ii)(A). While the Tribunal acknowledged that it must be satisfied that the MOC applied the correct test, it also noted that reg.2.25A(3) requires the Minister to take the MOC's opinion as correct. The Tribunal had offered the review applicant an opportunity to obtain a current MOC opinion, given that the existing opinion was over two years old, but this offer was declined. The review applicant's request to adjourn the review until the visa applicant's health improved was also considered, but the Tribunal found that it was bound by the existing MOC opinion in the absence of a current assessment.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application.