This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

The Migration Health Requirement


Most applicants for Australian visas must fulfil the migration Health Requirement as well as the Character Test.The criteria for health assessments are determined by the length of the person’s proposed stay, the purpose of their visit and the type of visa they are applying for. According to the Department of Immigration and Citizenships, the Health Requirement is necessary to:

  • Protect the Australian community from risks to public health;
  • Contain public expenditure on community services and health care
  • Ensure Australian citizens have access to health care and community services that are in limited supply.

Public Interest Criteria

Under Schedule 4 of the Migration Regulations, there are three Public Interest Criteria (PIC). These are:

  • PIC 4005, which applies to most visa applications, and sets out the standard migration Health Requirement criteria. These include meeting the ‘significant cost’ and ‘prejudice to access’ requirements;
  • PIC 4006, which applies to long-stay skilled business visas. Under this criterion, applicants who fail to pass the health requirement have access to a waiver provided their sponsoring employer indemnifies their identified health-related costs; and
  • PIC 4007, which applies to a limited number of family stream, skilled and humanitarian visa applicants. Under this criterion, applicants who fail the Health Requirement have access to a waiver consideration at the Minister’s discretion. This means the Minister can consider compelling and compassionate circumstances as well as financial and other offsets to the costs. The applicant may provide additional medical reports and other evidence of their circumstances to offset the costs that have been identified.

An applicant will not meet the health requirement if the department considers them a threat to Australia’s public health (for example, by having tuberculosis) or because they have a disease or a condition that would amount to a significant cost to the Australian community or that would prejudice the access of Australian citizens and permanent residents to health care.

Where an applicant is assessed as having such a condition, they will not receive a visa unless they are granted a health waiver The majority of permanent visa applicants do not have access to a waiver.

Who must pass the migration Health Requirement?

All applicants for permanent visas are assessed against the Health Requirement. This includes their partner and children, even if those persons are not included in the application.

Applicants for temporary visas may be required to have a medical examination, including a chest x-ray and other tests depending on the length of their proposed stay, their intended activities while in Australia and other factors.

Applicants for offshore refugee and humanitarian visas are also expected to pass the Health Requirement before being granted a visa. Applicants from this group may still be rejected on health grounds.

Procedure

Where a person applies for a visa, the departmental decision-maker must assess whether the person has a significant medical condition. This can be done through self-identification by the applicant or by requiring them to undergo a medical assessment. If the person has a significant medical condition, the Medical Officer of the Commonwealth (MOC) will receive the results of their assessment and will give its opinion as to whether the person meets the Health Requirement. The decision of the MOC is usually final.

Significant cost threshold

When it is assessing whether a person passes the Health Requirement, the MOC will determine whether the person’s illness or condition will require health care or community services whose costs will exceed the threshold for ‘significant cost’. An applicant will be found not to meet the Health Requirement if the cost of their treatment is likely to exceed $21,000.

Prejudice to access

Visa applicants are also assessed on ‘prejudice to access’. This is where an applicant’s disease or condition is likely to prejudice the access that Australian citizens or permanent residents have to health care and community services – for example, through dialysis, organ transplants, knee and hip replacements or blood/plasma products. This may also be through services such as hospital services, rehabilitation services and disability services or residential or palliative care.

Criticisms of the health requirement

The MOC is commonly criticised for habitually assessing the same condition as attracting the same costing, regardless of the level of disability the individual patient has or the level of care they receive or require. It is notoriously difficult to calculate the future costs of a disability or medical condition. The Royal Australasian College of Physicians (RACP) has expressed concern that disabled visa applicants may be rejected on the basis of untested assumptions about the future costs of their disability. It is particularly difficult to make such an assessment where the person concerned is still very young.

It has also been pointed out that the costs estimate is made regardless of whether the person will actually use health care. Furthermore, the criteria ignore the healthcare burdens posed by other factors such as obesity or alcoholism, which the migration process does not screen for. Furthermore, the opportunity to provide evidence of a person’s capacity to offset their healthcare costs is not extended to the majority of applicants.

The main criticism of the ‘prejudice to access’ principle is the assumption it carries that a person with a disability will use all the services available for that disability, rather than assessing the likely use of services by the particular individual.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

WHY CHOOSE ARMSTRONG LEGAL?

Armstrong Legal
Social Rating
4.5
Based on 271 reviews
×
Legal Hotline.
Open 7am - Midnight, 7 Days
Call 1300 038 223