Health waivers: Why subclasses matter when applicants have adverse health

We all like to think that professional journalism is as even-handed affair. That articles are well-researched and industry specialists are consulted when journalists are presented with a matter that might be newsworthy. For articles on Australian immigration, registered migration agents tend to have a knack for spotting reports that just does not seem right.

Take an article published in the highly reputable Melbourne newspaper, The Age, yesterday regarding visa applicants with an autistic son. Readers unfamiliar with Australia immigration laws would think that the decisions made by the Department of Immigration and Border Protection (DIBP) and the Administrative Appeals Tribunal (AAT) were an injustice to the visa applicants, and adverse health of a visa applicant should not be a barrier to migration. In some cases it is not.

Health, along with other criterion such as passing the character test, is part of what is known as “Public Interest Criterion” (PIC). PICs are required to be satisfied in order for a visa to be granted. For permanent visas, the health criterion is particularly important. This is because if this was not regulated, the cost of Australia’s public health system would grow enormously, and eventually become untenable. This is why if a visa applicant, or any members of their family unit, has a condition which is not a threat to public health, but will probably result incurring significant costs to Australia’s health system or would result in prejudicing Australian citizens or permanent residents to access necessary health services, they will probably fail the health criterion and therefore the visa application will also likely fail.

Given this, however, the subclass of a permanent visa is critical to whether a visa applicant has access to a health waiver. Some subclasses allow it, and some subclasses do not. A health waiver entitles the decision maker to grant a visa even when the applicant fails to meet the health criterion. The provisions for a health waiver was created shortly after the widely reported case of Dr Moeller and his son. In assessing a health waiver, the decision maker will take many factors into account, and this is where an applicant can plead their case as to why a waiver should be exercised.

And this is where the article in question is lacking. The visa applicants possess many positive attributes that would have been favourable to a health waiver. Their contributions to Australia, and highly skilled occupations quickly come to mind for starters. Additionally, their son had a “mild” form of autism, meaning that the assessed cost may have been at the lower end of the financial scale. Of course, this assessment is all based on speculation from the facts given.

One wonders where this application went wrong: not seeking professional advice, not providing evidence requested, or perhaps all of the evidence provided was simply not enough to warrant a health waiver? Or perhaps this author’s best guess is what occurred: the visa they applied was not a visa where a health waiver could be considered. If so, the application appears to have been doomed from the beginning. If this is indeed true, leaving out these details is not accurate reporting as it does not represent the true state of affairs.

Sadly, one migration agent’s professional curiosity with this matter will probably never be satisfied.