Do you meet the health requirements for an Australian visa?
All Australian visas require that the visa applicant or visa holder, meet a certain level of health requirement. The key focus is designed to protect the Australian community and prevent potential costs to Australian health care and community services. It is also to safeguard the access of Australians to health services that are in shortage.
However, having health issues don’t necessarily mean that you automatically do not meet the health requirements – it depends on a combination of the severity of the issue and the amount of treatment required for the issue.
What are the health requirements?
To meet the health requirement, you must be free from any disease or condition that is:
Is considered a threat to public health or a danger to the community, such as having active tuberculosis.
A significant healthcare and community service cost to the Australian community – for temporary visas what is a significant cost will depend on how long the visa is granted for and, for permanent and provisional visas, anything above $51,000 is a significant cost. The cost of the associated treatment will be assessed by a Medical Officer of the Commonwealth (MOC).
Likely to limit the access of Australian citizens and permanent residents to healthcare and community services that are in short supply by placing demand on those services.
If you are required to have a health examination, you will be assessed by a MOC if your health condition:
Threatens public health
Results in significant healthcare and community service costs
Places demand healthcare or community services that are in short supply.
Can Health Requirements for Australian Visa be waived?
There are two types of health requirements – one that can be waived and one that cannot be waived. If your visa type’s health requirement is waivable, the Minister can waive it on the basis that you:
1. Meet all other visa grant criteria.
2. Granting the visa wouldn’t cause the undue costs to the Australian community.
3. Granting the visa wouldn’t cause undue prejudice to the ability of an Australian citizen or permanent resident to access health care or community services.
This discretion permits the departmental decision-maker to override the opinion of the MOC on the basis of any relevant factor, provided the relevant condition is not a risk to public health. When considering whether to waive the health requirement, the Minister could factor in your income, employment prospects, contributions to the community, current care arrangements in place, negative effects on Australian children, and other compassionate and compelling circumstances.
If you fail the health check for a visa that requires the non-waivable health requirement to be met, then you will likely need to find another visa, which offers an opportunity for a health waiver. The non-waivable version of the health requirement leaves no room to rebut the assessment and opinion of the MOC.
How fatal are failing health requirements?
If your visa is refused on the non-waivable health criteria, it is considered to be virtually incurable. Statistically, there are very few successful appeals due to the fact that the Minister for Immigration delegates the power to the MOC to make the decision. The opinion of the MOC cannot be challenged (not even by world-renowned doctors), unless the MOC did not follow proper procedures.
However, if your visa is refused on the waivable health criteria, it will be possible to appeal it to the Administrative Appeals Tribunal (AAT). In a recent case, at the AAT, a decision to refuse a temporary visa due to the fact that the primary applicant’s son had significant disabilities was successfully appealed. The appeal was won on the basis that the actual cost the child will have on the Australian community is minimal as he was not eligible for NDIS or State Disability Services as a temporary visa holder, in addition to other circumstances.
How are family members affected?
For permanent residency applications, the health requirement is strict, and your visa application may be affected by your family member's health conditions. This is the case even if they are not included as an applicant on your visa application. This is referred to as the “one fail, all fail” rule, which was designed specifically to prevent visa applicants from circumventing the spirit of the health requirement for visas.
For example, if your visa application did not include family members, and your non-migrating child fails to meet the health test, your application may be refused.
What if Health Waiver is not available?
If the visa you’re applying for does not contain a health waiver, there are a number of successfully proven strategies our firm used, for example:
Applying for a visa that does not require health tests or a visa allows for a health waiver.
If you are applying for a temporary visa, adjust the ‘relevant’ period to lower the calculation of ‘significant costs.
Arguing that it would be unreasonable to undertake a health examination.