If you are looking to apply for a visa to Australia, an important factor to consider is whether you are required to satisfy a health criterion for the visa to be granted. Whether you are required to undergo a medical examination for an Australian visa will depend on a range of factors, including the visa subclass which you are applying for, your country of citizenship/residence, how long you intend to stay in Australia, and your intended activities in Australia.
Having to meet the health requirement for grant of a visa also extends to children. This means that if your child has a condition that requires health care and/or community services that is a significant cost or in short supply, they may not meet the health requirement to be granted a visa.
In a significant development, as a result of recent changes to the Migration Act, the Department of Home Affairs (the Department) may now apply special consideration to children who do not meet the health requirement provided they meet specified criteria, in which case they may still be granted a visa.
To be eligible for special consideration, your child must be:
- under 18 years of age at time of lodgement of the visa application;
- born in Australia; and
- ‘ordinarily resident’ in Australia.
Do You Need To Apply For Special Consideration?
No, if your child meets the above criteria and they do not meet the health requirement for a temporary or permanent visa, you do not need to apply for special consideration. The Department will assess whether your child meets the eligibility criteria to still be granted a visa.
How Will The Department Assess Whether Your Child Meets The Eligibility Criteria For Special Consideration?
Firstly, the Department will confirm that your child was born in Australia by sighting their full standard Australian Birth Certificate issued by Births, Deaths and Marriages.
Secondly, your child must be assessed as having been ordinarily resident in Australia. To meet this criterion, they must have resided in Australia for more than half of their life from the date of their birth until the lodgement date of the visa application. The Department will assess this based on your child’s movement records, to calculate their time in Australia.
What Happens If Your Child Is Not Eligible For Special Consideration?
Your child may still be granted the visa if a health waiver is applied by the Department.
Applying a health waiver means that the Department will waive the need for your child to meet the health requirement to be granted a visa. A health waiver can only be applied to certain visa applications for which Public Interest Criteria 4007 is a requirement for the grant.
You cannot apply for a health waiver. If this option is available, you will be contacted by the Department to advise that your child has not met the health requirement for grant of the visa. You will have an opportunity to comment on the opinion of the Medical Officer of the Commonwealth (MOC), provide information and complete a submission outlining the reasons why the health waiver should be exercised in your child’s case (with appropriate supporting evidence to be supplied, as applicable).
Health waivers are assessed on a case-by-case basis, taking into account a number of factors, including:
- The capacity to mitigate the likely potential costs of your disease or condition, or lessen the impact of preventing access of Australians to services in short supply; and
- Any compelling and/or compassionate circumstances that may exist.
The Department will make a decision based on the above, and if it decides to exercise the health waiver, the visa will be granted. Otherwise, it will be refused.
To conclude, these changes are significant as this means that children who otherwise would not be granted a visa based on failing to meet the health requirement can now be granted a visa. This special consideration recognises that children born and ordinarily resident in Australia have an inherent connection to the Australian community since birth.
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Contact us to book a no-obligation consultation to find out more about the new special consideration provisions for children who are born and ordinarily resident in Australia and do not meet the health requirement, and to assess your child’s eligibility.
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Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you are seeking to apply for a visa, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this.
For up-to-date advice on applying for a visa, including how the special consideration provisions apply to your child’s case, contact PAX Migration Australia, a leading immigration service providing advice on a range of visas. Contact us for a no-obligation discussion on how we may be able to assist you in achieving your migration goals in Australia.
