The ‘Health Assessment’ and partner visa applications.
All applicants for Australian partner visas are required to complete a health assessment (medical examination).
Generally speaking, a partner visa applicant must be free from a disease or condition where the providing of health care or community services in Australia to the person with that condition would be likely to:
• result in a significant cost to the Australian community in the areas of health care and community services;
or,
• prejudice (restrict) the access of an Australian citizen or permanent resident to health or community services.
If the applicant passes the medical examination, then nothing further will be heard about the medical examination and processing of the partner visa application will continue.
The Waiver Process
If the applicant does not pass the medical examination, then it is possible to request that the requirement to pass the medical examination be ‘waived’ (disregarded).
If the requirement to pass the medical examination is waived (for an applicant who does not pass the medical examination) then the partner visa can still be granted if the applicant meets all other requirements for grant of the visa, even though the medical examination has not been passed.
What is required to obtain a Waiver of the requirement to pass the medical examination?
The Waiver decision maker must be satisfied that grant of the visa to the applicant that does not pass the mededical examination would be unlikely to result in:
(a) undue cost to the Australian community.
or
(b) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
What does ‘undue’ mean?
Although ‘undue’ is not defined in migration law:
• the dictionary definition of undue is “unwarranted; excessive; too great”
and
• the courts have indicated that a broad range of discretionary considerations can be taken into account in determining whether costs or prejudice to access are “undue”, which, in a given case, may include mitigation of costs or service, or consideration of compelling and compassionate circumstances.
Obtaining a waiver of the health requirement for a visa applicant that has not passed the medical examination can be possible, but it is complex and difficult.
If you need to apply for a waiver I strongly recommend that you consider getting advice and representation from a Immigration Lawyer or a Registered Migration Agent that has significant experience in the area.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
Tel: 08 8528 9187
This information is correct at August 18th, 2021. But, keep in mind that immigration law changes from time to time.
