US
Most people applying for Australian visas are required to satisfy prescribed health requirements which are intended to protect the Australian community from health threats while safeguarding access of Australians to health care and community services as well as public expenditure on those services.
To satisfy the health requirements, a visa applicant will generally need to demonstrate they that are:
- Free from active tuberculosis;
- Free from a disease or condition that would represent a threat to public health or danger to the Australian community (e.g. Ebola); and
- Free from a disease or condition that:
- is likely to require health care or community services; or
- Meet the medical criteria for the provision of a community service during the prescribed period and provision of that health care or community services would likely result in either:
- significant cost to the Australian community in areas of health care and community services; or
- the prejudice of access to treatment for Australians to such services.
‘Community services’ for this purpose includes the provision of Australian social security benefits, allowances or pensions and is also taken to include services such as supported accommodation, special education, home, and community care.
For permanent visa (as well as provisional visas leading to permanent visas, for example, Partner visas), the health requirements must also be met by non-migrating dependent family members unless considered unreasonable to do so in the circumstances.
How are the costs calculated?
The question as to whether the health care or community services will actually be used by the visa applicant is irrelevant in the health cost assessment. This is because the assessment is based on what services a hypothetical person with the same condition as the visa applicant would be entitled to access.
Despite this, from 1 July 2019, there have been some positive changes to health policy guidelines regarding the financial threshold for ‘significant costs’ and the costs assessment period for persons with a permanent condition or disease. This ‘significant costs’ assessment is measured against a threshold which from 1 July 2019 is set at A$49,000 (a slight increase from the previous threshold of A$40,000). How this is calculated varies depending on whether the visa applied for is temporary or a permanent and in the case of temporary visas, the period of stay that has been sought.
For temporary visas, the hypothetical cost of services is assessed over the proposed period of stay. For permanent visas, the hypothetical costs for a person with a permanent disease or condition have historically been calculated across a ‘lifetime’ cost assessment period. However, under revised policy guidelines, from 1 July 2019 the hypothetical costs of services are capped at a maximum 10-year period, assessed as follows:
|
Visa applicant characteristics |
Cost assessment period |
|
Applicants aged 75 years and over |
Three years |
|
Applicants with reasonably predictable (beyond a five-year period) permanent condition |
A maximum of 10 years |
|
Applicants with reasonably predictable (>65% likelihood) reduced life expectancy |
A maximum of 10 years if expectancy is greater than five years |
|
All other permanent and provisional applicants |
Five years |
What happens if the expected costs are more than the significant cost threshold?
Where the estimated costs exceed the significant cost threshold, the visa will be refused unless a health waiver is available. Importantly, for permanent and provisional visas, a ‘one fails, all fail’ rule applies. This means that if a partner or dependent child (including non-migrating children) fails to meet the health requirements, the visa application will be refused for all family members, including the primary visa applicant. This ‘one fails, all fail’ rule does not apply to temporary visas.
Health waivers are available to a limited number of visa categories including the Subclass 482 Temporary Skill Shortage visa and the ‘Temporary Residence Transition’ stream of the permanent Subclass 186 Employer Nomination Scheme and Subclass 187 Regional Sponsored Migration Scheme, and a limited few other skilled and family-sponsored visas. If exercised, this health waiver allows for the relevant visa to be granted provided the Department of Home Affairs is satisfied that the grant of the visa will be unlikely to result in:
- undue cost to the Australian community; or
- undue prejudice to the access to health care or undue prejudice to the access of health care or community services of an Australian.
These health waiver applications consider a range of factors based on the applicant’s individual circumstances including their ability to mitigate the potential costs/prejudice to access identified, as well as any specific compelling and/or compassionate circumstances.
Fragomen has expertise in applications involving health conditions as well as the health waiver process. For further information on the health requirements for Australian visas, or for advice on a particular situation, please contact me on +61 2 8224 8572 or cwright@fragomen.com.