At Taylor & Scott Lawyers we can provide you with expert advice from our registered Migration Agents, on whether you can apply for a waiver of the health requirement contained in your visa application.
Like all countries, Australia has a duty to protect its citizens from the introduction of dangerous or infectious diseases from visitors or migrants to our country. In addition, because of Australia’s Medicare public health system and our pharmaceutical benefits scheme potential migrants with serious health conditions can cost the community a significant amount of money or can tie up scarce medical resources that could otherwise be accessed by Australians.
Thus ALL non-Australians who intend to enter Australia on a visit, to work or to live must meet the migration laws as to their health. One aspect of this is that in applying they are expected to answer truthfully questions about their health and provide details of a range of diseases or health conditions, as well as advising what they will be doing while here that may be out of the ordinary. For many TEMPORARY visitors for short periods that is all that is required, but depending on their nationality or whether they are intending to engage in study, work in health care or education etc they may be required to have medical tests that might include a chest X-ray, an HIV blood test and a general physical examination or all three medical tests. The main issue here is protecting Australians from exposure to tuberculosis or other serious diseases which may be a danger to the community.
For those applying for PERMANENT residency visas, including temporary visas that are expected to lead to permanent residency later (for example partner or fiancée visas or first stage business or skilled visas) all applicants are expected to advise truthfully about whether they have a wide range of specified serious health issues AND also to undergo all three of the above medical tests i.e. X-ray, blood test and medical examination. The Government has appointed ‘panel’ doctors overseas or has contracted with Medibank Health Solutions in Australia to conduct the testing: the webpage of the Department of Immigration and Citizenship has details of places here or overseas where people can go for testing if required. The Department is moving rapidly to the fully computerized handling of health testing and testing results for potential or actual visa applicants.
For those who declare they have or testing shows that they have active tuberculosis or other infectious diseases that the Government medical officers consider to be a danger to the Australian community, these conditions will mean that they cannot enter Australia even on a temporary basis. They will fail the health test and the visa application will be rejected. There is no exemption from this strict policy.
For all other diseases and conditions disclosed or found on the test, whether they can succeed in their visa application will depend on the opinion of a Medical Officer of the Commonwealth. These are Government doctors who must provide an opinion as to whether that disease or condition will result in a ‘significant cost’ to the community in the provision of health care and community services and/or will result in substantial ‘prejudice to access’ by Australians to a range of medical facilities or services in short supply in Australia. The threshold amount for a finding that there is ‘significant cost’ is at present $40,000 (costs for the medical care or community services calculated over a five year period for permanent visas). Examples of the medical services in short supply are organ transplants or access to blood plasma products.
The opinion of the Medical Officer of the Commonwealth on these matters is by law regarded as being correct and cannot be challenged if legally valid, even by other specialist or expert medical opinions provided to the Department by the visa applicant.
If the Medical Officer’s opinion is that you or a member of your family unit do not meet the health test because of the ‘significant cost’ of treating the disease or condition and/or because the medical service is in very short supply in Australia that person does not meet the health test. If one person that is part of a visa applicant’s family unit does not meet the health test, migration law provides for a ‘one fail all fails’ rule, meaning that no-one in the family can obtain a visa UNLESS the particular sort of visa allows for a ‘health waiver’ (this is explained below).
Unless there is a health waiver for the sort of visa being applied for, this means that all applicants for migration visas cannot be granted the visa and they cannot enter or remain in Australia. Some will be able to apply later, if and when their medical condition is ‘cured’ (for example, tuberculosis becomes inactive or an operation overcomes a costly medical issue). Some people, such as pregnant women who are required to have an X-ray, cannot pass the health test until after the birth when they can safely have an X-ray, and these must delay their visa applications until later.
There are two sorts of health waivers. One is for employer-sponsored Temporary Work (Skilled) (subclass 457) visas and if a Medical Officer is of the opinion that the person does not meet the health test because of a significant cost issue about a disease or condition, he or she may obtain a health waiver, or exemption, from meeting the health test, IF, the employer in writing agrees to meet the health costs of the potential employee (or member of their family unit) during their stay in Australia.
The second type of health waiver is much more complex and is available for some family and recently was extended to cover employer-sponsored skilled worker and business visas where the skilled worker has been living in Australia for some time and has built up close work and personal ties here. For these visa categories, the particular health condition required to succeed allows for a waiver in meeting the health test if the significant costs or substantial ‘prejudice to access´ to medical services in short supply is found by the Department to be ‘NOT UNDUE’ in the particular circumstances.
The Courts have determined that the word ‘undue’ means that various ‘compelling and compassionate’ circumstances may be considered to lead to a finding that the costs or prejudice are not excessive in the particular circumstances. The processes under which the visa applicant prepares information and makes a submission to have the Department consider a ‘health waiver’ application vary depending on the type of visa applied for. However, all health waiver applications are complex and involve careful and detailed work involving specialist and experienced migration practitioners.
As explained, the ‘health waiver’ process is complex and in practical terms requires a visa applicant to engage specialist, experienced lawyers who are familiar with the law and the policy guidelines for accessing health waivers, as well as the relevant case law of the Migration Review Tribunals and the Federal Courts. Taylor and Scott have been active in assisting a range of clients needing to prepare and submit health waiver submissions for more than 15 years. Our clients over that lengthy period have had to use our services for a wide range of medical conditions, including heart conditions, diabetes, physical and mental disabilities and HIV.
Taylor and Scott’s consultant Lachlan Riches is widely recognized as one of the leading legal authorities in Australia in assisting migration clients to obtain health waivers. He is frequently invited to speak, write about or consult with a wide range of professionals in the field, including doctors, community organizations, other lawyers or migration agents and the Migration Institute of Australia where he has written the private study module on the health test and lectures migration agents/lawyers on the migration health provisions and accessing health waivers.
Our experience and expertise mean that if your migration visa application is facing refusal because of health issues for you or one of your family members, you can turn to Taylor and Scott with confidence that your case will be handled expertly, sympathetically and efficiently by a senior acknowledged expert in the field. The services we offer in relation to health issues extend to handling initial visa applications, preparing the detailed health waiver submission to the Department, following up any issues and, if necessary, representing our clients at the Migration Review Tribunal.
Almost all of our health waiver clients in recent years have been successful in obtaining a health waiver from the Department. Others Taylor & Scott have assisted have succeeded in overturning an initial refusal by the Department in an ‘appeal’ to the Migration Review Tribunal.
For all those hoping to migrate to Australia with various health issues, the process of achieving a successful outcome can be very stressful, complex and daunting. Taylor and Scott can provide a friendly and highly experienced team to assist you in achieving your goal, working through the maze of requirements that must be complied with to achieve success.
At Taylor & Scott, We Care For You.