Immigration Medical Examination and Health Waivers
If you have already applied for a visa and failed your visa medicals, or you are about to apply for a visa and have health conditions, you are probably worried that your visa application may be in jeopardy.
To understand where your situation is currently at, take a look at the following step-by-step guide on what happens when you fail immigration health examination or have health medical conditions, and how your visa application can be rescued.
Tell us your story and what stage you are in and let’s see how we can help you.
Step by step guide
Jay Son – Australian Immigration Lawyer
Jay Son, our principal migration lawyer and Director of Hummingbird Legal, is based in Australia and highly experienced in visa medical concerns and health waivers submissions. Jay is admitted to the Supreme Court of Queensland and the High Court of Australia. Jay is based in Australia and practises exclusively in Australian immigration law.
Jay is a strong migration advocate and is highly experienced in challenging government decisions in relation to Australian immigration law. He solves difficult migration matters and visa problems including complex partner visas, AAT appeals, visa refusals, visa cancellations, Schedule 3 submissions, health waiver and character concerns.
If you want to learn more about Jay, click here.
Step 1 – Types of Visa Medicals Required
(a) Permanent or Provisional Visa
Generally speaking, you will need to have:
- Medical examination
- Chest X-ray and;
- A HIV test
And in some circumstances, Hepatitis B and C.
(b) Temporary Visa
With temporary visas, it depends on
- The specific visa you’re applying for
- How long you’ll be staying in Australia, what you’ll be doing while you’re here, which could be either study, work or a visit and
- Also, the country you’re applying from, etc
The Immigration will determine exactly which type of visa medical examination will be required after you apply for a visa, or we can help identify it for you.
Step 2 – Medical Examination Process
You can’t have your Immigration health examination before you apply for a visa.
Steps are below:
- apply for a visa;
- the Department determines if you’re going to need health examination for visa, when you are going to have to do it and what types of exams you’ll need to do; and
- Go to a panel doctor selected by the Department and your health examination for visa will take place there (your medical exam will be handled by Bupa Medical Visa Services)
Step 3 – What Happens after the Medical Exam
If you’ve done your medicals and you haven’t heard anything about it for a while, it’s very likely that you’ve passed your medical test, happy days. So as long as you meet the rest of the visa requirements, you should be able to get your visa with ease.
Step 4 – What if you fail the Medical Exam
You can still get your Australian visa, but you will need to take further action.
The Immigration Department will first ask you what you think about their decision, you know, the decision to fail your medical test. It is a part of the legal procedure that the Immigration Department must undertake before they can refuse your visa in this way.
In legal terms, it’s called a natural justice process to seek your opinion or comments about (1) what the Department has done, which is determining that you ‘fail the medical test’ (i.e. do not meet the health requirement) and (2) what they are going to do next, which is then refusing your visa on this basis.
It is a legal opportunity given to you to prove that they made a wrong assessment based on evidence, before they refuse your visa.
Step 5 – How can you do this?
As part of the natural justice process, the Immigration Department is obligated to provide you with the specific details of the assessment.
They have to follow specific procedures and guidelines.
They are obligated to determine that you do not meet the health requirement, if giving you the visa, in other words, passing your medical test, will:
- create a significant cost to the Australian community or;
- prevent Australians from accessing health care or community services that may be in short supply
Simply put, the government is going to have to spend too much money to care for you OR there will be not enough medical resources to care for you because other Australians with similar medical conditions will need them.
So you will need to go back to the Department and explain why the issues listed in the medical report are not necessarily correct.
Step 6 – Is there a time limit?
There is a strict time limit. Every case is different, but you will generally get 28 days from the issue of the natural justice letter.
Step 7 – What if there is no hope of challenging the medical report?
The Department of Home Affairs can sometimes exercise their discretion where they waive the health requirements to grant a visa, based on compelling and compassionate circumstances that you may have. This also includes looking at your financial position as well as your significance in Australia. This process is called ‘Health Waiver‘, but the Department can’t use this discretion for every visa.
You need to have applied for a specific visa, right from the beginning.
Step 8 – What to do next?
If you have any doubts about your health conditions or you have already failed your immigration health examination, talk to us and we will assess your whole situation, both your visa eligibility and health conditions, and we can suggest a specific type of visa that will give you access to the health waiver discretion, if needed.
Also, we will be able to make strong legal submissions to argue your health waiver case in order to provide the Department with clear answers as to why the health waiver should be exercised.
We have had several successful health waiver applications. We assist our clients by identifying their most compelling arguments, compiling all pertinent evidence, and drafting persuasive submissions on their behalf. We will talk to your GP, specialists, family members, community members and employers to gather evidence.
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