Most applicants for Australian visas must fulfil the Migration Health Requirement before they will be granted a visa. The Migration Health Requirement involves different criteria for health assessments, which are determined by the length of the proposed stay, the purpose of the visit and the type of visa being applied for. This page deals with the Migration Health Requirement and its three public interest criteria.
Why does the Migration Health Requirement exist?
The Department of Immigration and Citizenships states that the Health Requirement is necessary for the following reasons:
- To protect the Australian community from public health risks;
- To contain public expenditure on health care and community services;
- To safeguard the access of Australian citizens to health care and community services that are in limited supply.
Public Interest Criteria
Schedule 4 of the Migration Regulations sets out the following three Public Interest Criteria (PIC) relating to health.
This criterion sets out the standard Health Requirement criteria including meeting the ‘significant cost’ and ‘prejudice to access’ requirements. This is the criterion that applies to most visas.
This criterion applies to long stay skilled business visas. Applicants who fail to pass the health requirement under this criterion have access to a waiver provided their sponsoring employer agrees to indemnify their identified health-related costs.
This criterion applies to a limited number of family stream, skilled and humanitarian visas. Applicants who fail the Health Requirement under this criterion have access to a waiver consideration at the Minister’s discretion. This allows the Minister to consider compelling and compassionate circumstances as well as financial and other offsets to the costs. The applicant will be allowed to provide additional medical reports and other evidence of their circumstances to offset the costs identified.
Who will not pass the Health Requirement?
An applicant will not meet the Health Requirement if:
- they are a threat to Australia’s public health
- they have a disease or a condition that would result in a significant cost to the Australian community or that would prejudice the access that Australian citizens and permanent residents have to health care.
An example of a disease that will be seen as a threat to Australia’s public health is tuberculosis. A condition that is likely to result in a significant cost to the community is a permanent disability or serious illness such as cancer that is likely to require ongoing or repeated medical interventions or the support of ongoing services.
A person who has such a condition may still be granted a visa if a health waiver is granted. However, the majority of permanent visa applicants do not have access to a waiver.
Who must pass the Health Requirement?
All applicants for permanent visas must be assessed against the Health Requirement. This includes the applicant’s partner and children, even if they are not included in the application.
Applicants for temporary visas may have to have a medical examination, chest x-ray, and other tests depending on the length of their proposed stay, their intended activities in Australia, the level of risk of tuberculosis in their country and other factors.
Applicants for offshore refugee and humanitarian visas must also pass the Health Requirement. Applicants from this group may be rejected on health grounds.
Where a person applies for a visa, the departmental decision-maker must identify whether the person has a significant medical condition. This can be achieved through self-identification by the applicant or by requiring the applicant to undergo a medical assessment.
If the person has a significant medical condition, the results of their assessment will be referred to the Medical Officer of the Commonwealth (MOC) for its opinion as to whether the person meets the Health Requirement. In most cases the MOS’s decision is final.
Significant cost threshold
In assessing whether a person passes the Health Requirement, the MOC will determine whether their illness or condition will require health care or community services whose costs will exceed the ‘significant cost’ threshold.
Prejudice to access
Visa applicants are also assessed in relation to ‘prejudice to access’. This is where a person’s disease or condition is assessed as being likely to disadvantage Australian citizens or permanent residents. This may be because of limited access to dialysis, organ transplants, blood/plasma products or knee and hip replacements. It may also be by adding to the demand for services like hospital care, residential or palliative care, disability services or rehabilitation services.
Criticisms of the health requirement
The process followed by MOC has been criticised, particularly on the basis that it habitually assesses the same condition as attracting the same costing, regardless of the level of disability the individual patient has or the level of care they require.
It is notoriously difficult to calculate the future costs of a disability or medical condition particularly when the person in question in young. The Royal Australasian College of Physicians (RACP) has expressed concern that disabled visa applicants may be rejected based on untested assumptions about the future costs of their disability.
Another criticism of the current system is that the costs estimate is made regardless of whether the health care will be used by the applicant. The criteria also ignore the healthcare burdens inherent in other factors like obesity or alcoholism, which are not screened for during the immigration process. Furthermore, the opportunity to provide evidence of an applicant’s capacity to offset future health costs is not extended to most applicants.
The ‘prejudice to access’ principle is criticised for its assumption that a person with a disability or health condition will necessarily use all of the services that exist to cater for that disability, rather than assessing the likely use of services in the applicant’s situation.
If you require legal advice or representation in an immigration law matter or in any other legal matter, please contact Taylor Rose.