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Your Guide to Australian Health Requirements

August 1, 2003

Australia has managed to keep itself largely free of many serious global epidemics, but in an age of increasing international travel, this is an uphill battle requiring strict policies. As a result, people who intend to migrate to Australia must undergo medical examinations.The Immigration Department’s health requirements are a set of rules that have become exceedingly complicated over time. What follows is a simple guide to how the system works.Who needs an examination?All applicants for permanent visas and for temporary visas that lead to permanent visas are required to undergo health examinations. Temporary visa applicants considering a stay of less than 3 months need not undertake any health examinations. For more details, see:www.immi.gov.au/alforms/pdf/1071i.pdfThose looking to move here permanently must also have their immediate families examined – even if they are not coming to Australia. The idea here is to stop people from gaining residence solely for the purpose of sponsoring their sick relatives to come to Australia. There are exceptions to this rule – usually if the family member is no longer a dependent or is institutionalised.Requirements for temporary residence and student visas tend to vary depending on a variety of factors, including where applicants come from. For details, see:www.immi.gov.au/alforms/pdf/1163i.pdfHow do I arrange an examination?Those applying outside Australia should not complete health examinations before lodging their application. Upon lodging an application, applicants can get forms and a list of government-approved doctors from Australian diplomatic offices.Those applying onshore do not need to wait. They should acquire the appropriate forms at the nearest Immigration Department office and contact Health Services Australia (HSA) to arrange an exam. (call 1300 361 046 or at www.healthoz.com.au)What criteria must I satisfy?Visa applicants must satisfy various criteria in order to obtain a visa. Most visa applicants must satisfy what is known as the standard health requirement. Depending on the type of visa application, a visa applicant must satisfy the health requirement as it is set out in one of its three forms under Item 4005, 4006A and 4007 of Schedule 4 to the Migration Regulations.Put simply, Item 4005 provides the standard health requirement as follows:“The applicant:A) Is free from tuberculosis; andB) Is free from a disease or condition that is or may result in the applicant being a threat to public health or the Australian community; andC) (i) Does not have a disease or condition which:(A) is likely to require health care or community services; or(B) is likely to meet the medical criteria for the provision of a community service; during the period of the applicant’s proposed stay in Australia;(ii) Does not have a disease or condition where provision of the health care or community services would be likely to:(A) result in a significant cost to the Australian community in the areas of health care and community services; or(B) prejudice the access of an Australian citizen or permanent resident to heath care or community services; regardless of whether the health care or community services will actually be used in connection with the applicant; andD) If the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the Sate or Territory of intended residence in Australia for a follow-up medical assessment, the applicant has provided such an undertaking”A Medical Officer of the Commonwealth (MOC) assesses each case and makes recommendations to the Department. Tuberculosis is the only disease that immediately disqualifies an applicant from acquiring a visa. Often, those who have previously had turbeculosis also miss out because the disease can recur. Other conditions are assessed individually for possible impact on Australia’s health and health care system.It has been suggested in Continuing Professional Development seminars that there are nuances within these policies. In particular, the regulations stipulate that the diseases in question must be diagnosed with certainty. However, this is not always easy to do. While someone might display trembling or memory loss, this does not necessarily mean that they have Parkinson’s disease. If a MOC’s rejection is not based on a certain diagnosis, this may open up an avenue forappeal.Moreover, it must be shown that the applicant is ‘likely’ to develop a disease. Thus a cancer patient in remission must have a good chance of developing cancer again.Because the Australian government provides significant social welfare benefits, costs are taken into consideration. PAM 3 dictates that if an applicant is likely to consume public health resources at a rate 50 per cent above average over a five-year period, then a MOC will likely recommend against the applicant. However, it is not always easy to estimate costs to health, and these decisions can sometimes be appealed. Item 4005 means that when assessing the possible impact on community resources, the MOC does not have to prove that the applicant is likely to use the resources in question, only that he or she meets the medical criteria for the resources in question. This will not always affect the visa, because financial assets sometimes disqualify someone from receiving the benefits in question.The same item rules that the applicant must not take up health resources that are in short supply in Australia. An MOC might recommend against an applicant who requires an organ transplant on the grounds that he or she might take the place of someone who is already here.It is to be noted that MOCs will give more weight to medical evidence that they have requested a visa applicant to obtain from a DIMIA approved specialist compared with specialist opinions that the applicant has submitted that have not been specifically requested.Are there exceptions?In some cases, the Minister may grant a waiver of the health requirements. A) In cases where an Australian employer sponsors a visa applicant, the health requirement may be waived in certain circumstances. The Minister may grant an Item 4006A waiver if the sponsoring employer gives a written undertaking that they will meet all costs related to the disease or condition that causes the primary or secondary applicant to fail to meet the health requirement. B) In cases where Item 4007 applies, for example in spouse, child or interdependency and some humanitarian visa cases, the health requirement can be waived in certain circumstances. The Minister may waive the health requirement if:(i) the applicant satisfies all other criteria for the grant of the visa; and(ii) the Minister is satisfied that the granting of the visa would be unlikely to result in:a) undue cost to the Australian community; orb) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.What if I am rejected?It is uncommon for a MOC’s opinion to be overturned. The Migration Regulations provide that the Minister must take the opinion of the MOC as correct for the purposes of deciding whether a person meets an applicable health requirement.However, there are a number of legal avenues available. Generally, these occur when a MOC makes an assessment that falls outside the scope of the regulations. The opinion of the MOC is only to be taken as correct if it is an opinion authorised by the regulations, and validly so authorised. If, for example, a MOC oversteps the bounds of the regulations by claiming an applicant has a disease that cannot be diagnosed with certainty, then the applicant might be able to appeal the decision.Basically, the MOC opinion can be challenged if:

  • it clearly is not an opinion at all; or
  • there is doubt as to whether it is the actual opinion of the MOC, for example, it could be another third party’s opinion; or
  • the opinion goes beyond an assessment of whether the visa applicant meets the applicable health requirement.

Also, there is a strange legislative peculiarity that forces a MOC to consider a “hypothetical person” with a condition matching the applicant’s. This, on occasion, has opened up room for applicants to appeal a decision. However, it should be said that the courts have generally been quite reluctant to overturn a decision of a MOC. Though both the Migration Review Tribunal and Federal Court have jurisdiction to review many migration decisions, courts have been extremely unwilling to challenge a MOC’s opinion, unless there is clear evidence that the opinion was incorrect. Where can I get more information?More information is available on the Immigration Department’s web site:Health examinations FAQ:www.immi.gov.au/faq/general/general03.htmlFact sheet on health requirements:www.immi.gov.au/facts/22health.htmSource: The authors wish to acknowledge Mr Peter Papadopoulos and the seminar he presented on 18 June 2003 on the topic of ‘Health Criteria Under Australian Immigration Law’.

Contact: Anne O'Donoghue, Samantha Stavros, Timothy McDonald  of  Immigration Solutions