How sick is too sick?
Health provisions within Australia’s migration program has been a debated topic for many years due to the emotional and psychological impact the provisions have on everyday families across Australia. I have personally assisted many migrant families with infant children who fail the health criteria; the impact this has on families is unfathomable and results in a lengthy legal process. This being said, it is important for migrants to not be deterred by their medical diagnoses if they have a health condition which could affect their visa outcome. Throughout my legal career, some of my most rewarding work is assisting hard-working migrants overcome the health provisions; most of these migrants have been highly educated and I am sure will do great things for the Australian community.
When dealing with the health criteria associated with Australian visas, one of the common misconceptions is that the Medical Officer of the Commonwealth (‘MOC’) will take into consideration mitigating circumstances at the time of the medical assessment (for example, the migrant’s ability to pay some of the medical costs). When the migrant undertakes the medical examination, the MOC will assess the diagnoses and costs based on a hypothetical person with that condition. To provide more information, the MOC will identify the medical condition and then provide an opinion (with costs) on the following: likely to result in significant health care and community service costs if the visa is granted; and, require the use of Australian health care or community services that are in short supply. As it currently stands, the significant health care and community service cost threshold is AUD $40,000.00.
Under the current legal framework, there are some visas which have a ‘health provision waiver’, where a person can still satisfy the health requirements even if they fail health discussed above. For example, Partner visas and Child visas have health provision waivers. At the moment, the most common medical diagnoses which require a health provision waiver is Down Syndrome, H.I.V., Cerebral Palsy and Cancer (amongst others). If you have this type of medical diagnoses, this does not necessarily mean you cannot be granted a visa. If the Department of Home Affairs (‘DHA’) deem you to have failed the health criteria and you are applying for a visa which has a health waiver provision, there is still hope!
When considering the health waiver provision, the DHA investigate whether the migrant’s condition will have undue costs or apply further pressure on health care and community services that are in already short supply in Australia. When assessing this waiver, the DHA will consider the migrant’s circumstances on an individual case-by-case basis. Furthermore, the migrant will be given the opportunity to put forward specific information about their case, such as: the best interest of a child; the migrant’s ability to mitigate some of the expenses; and, migrant employment/skill, amongst other things.
I cannot stress enough that a migrant should not feel that ‘they will never be able to reside in Australia’ due to their medical diagnoses. To be frank, given the current migration climate, health waiver provisions are not an easy or straight-forward case, although not impossible! If you have a medical condition, I would strongly urge you to get advice from a migration lawyer about what are the best strategic options moving forward for you and your family.
