When you apply for a Partner Visa, you and your dependent children must pass the health requirement as part of the application. What happens if you pass the health test, but your child has a medical condition? Does this mean your visa application will be refused?
The starting point is that Partner Visa applicants can include their dependent children in the visa application. (For a detailed explanation on the meaning of dependent children, click here.) However, the consequence of including dependent children in the application is that both the primary applicant (that is you, the sponsored partner) and all included dependent children must pass the health requirement. If one fails, all fail.
What is the health requirement?
In its simplest form, the health requirement means that you must not have a medical condition which would impose significant treatment costs on the public or which would limit the public’s access to services in short supply. The second criteria is that you must not have a medical condition which poses a danger to the Australian public.
It’s important to realise that there is no medical condition which automatically leads to a visa refusal.
Flowing from the above, there are no two identical cases, and each application is determined based on its own set of individual circumstances.
That said, the single biggest issue (unsurprisingly) is to determine the future treatment costs of the medical condition which may apply in your case.
The government has issued detailed internal policy documents which list a large number of medical conditions together with typical in-hospital and outpatient treatment options. These policy documents contain detailed costings in relation to the treatment of these medical conditions.
So this means, for example, that if a child has previously been diagnosed with cancer, then depending on the type and severity of the cancer, the government has calculations available based on which the Immigration Department can reach a conclusion as to the likely future treatment costs in Australia. It is on this basis that a decision would be made whether the health requirement is satisfied.
Can a lawyer advise whether my child can pass the health test?
If your child has been diagnosed with a medical condition (meaning you have a medical report available which explains what is the condition), then it is possible to advise you whether it is likely that the health test would be satisfied. We would need to review the already existing medical documents, and may also need to consult with a medical expert if there are complex medical issues involved. Based on this evidence, we would be able to tell you whether it is reasonable to continue with the visa application.
What if my child can’t pass the health test?
Failing the health test is not necessarily the end of the story. The Government has discretion to waive the health requirement. This means if the government decides to waive the health requirement, then the Visa can be granted.
In practice, if the outcome of the health examination is that the health test is not satisfied, then the Immigration Department will notify the visa applicant that they will now consider whether the health requirement should be waived. You would then be invited to make submissions as to why it is appropriate to waive the health requirement. This is your chance to put forward your best possible case to convince the Government to exercise its discretion. You will need to make persuasive arguments. The Government can take into account a wide range of factors, including compassionate and compelling circumstances that apply in your case.
If you need assistance with assessing whether you and/or your children can satisfy the health requirement, or if you need to make submissions to the Department as to why the health requirement should be waived, please contact us for expert assistance.