Introduction
Receiving a refusal for a Subclass 602 Medical Treatment visa on health grounds can be a deeply distressing experience for any applicant. This outcome typically occurs when a visa applicant fails to meet Australia’s strict health requirement, a measure designed to protect public health and manage the cost of health care or community services.
However, failing to meet the health requirement does not automatically mean the end of your visa application. A health waiver is a provision in Australian migration law that provides a potential pathway forward, allowing a visa to be granted despite a health condition. This guide offers essential information for applicants, explaining the health waiver framework and how to build a compelling case after a medical visa refusal.
Understanding Medical Visa Health Refusals
Australia’s Visa Health Requirement
All Australian visa applications, including the Subclass 602 Medical Treatment visa, are subject to a strict health requirement. This requirement serves multiple purposes:
- To protect the Australian community from public health risks
- To control public spending on health care
- To ensure Australian citizens and permanent residents can access necessary services
To meet the health requirement, a visa applicant must satisfy a Medical Officer of the Commonwealth (MOC) on three key grounds:
- You must not have a medical condition considered to be a threat to public health, such as active tuberculosis
- Your health condition must not be likely to result in significant costs to the Australian community for health care or community services
- You must not require treatment that would prejudice the access of an Australian citizen or permanent resident to services that are in short supply
A refusal on health grounds is one of the common reasons for an Australian visa refusal. It occurs when the MOC, after reviewing the results of your health examination, determines that you do not meet one or more of these criteria.
Defining ‘Significant Cost’ & ‘Prejudicing Access’
Most health-related visa refusals are based on two specific assessments: “significant cost” and “prejudicing access.” Understanding these terms is crucial for any visa applicant with a medical condition.
The MOC estimates the potential cost of your health care and community services over a specific period. If this estimated cost exceeds the “significant cost threshold,” you will fail to meet the health requirement.
The assessment includes several important factors:
| Factor | Details |
|---|---|
| The Current Threshold | As of 1 July 2024, the significant cost threshold is AUD $86,000. |
| Hypothetical Calculation | The assessment is hypothetical and assumes the use of publicly funded services, regardless of intent to pay privately or use private health insurance. |
| Assessment Period | For temporary visa applicants, the timeframe is the length of the intended stay. For permanent visa applicants, it is generally assessed over a five-year period. |
“Prejudicing access” means that your medical condition is likely to require health care or community services that are in short supply in Australia. Using these services could limit their availability for Australian citizens and permanent residents.
The Australian Department of Health currently identifies two main services as being in short supply:
- Organ transplants
- Dialysis
Request Your Free 15-Min Consultation
Pathways When a Health Waiver Isn’t Available
Australian Visa That Allows a Health Waiver
If your circumstances permit, you may be able to lodge a new application for a different type of Australian visa that includes a health waiver provision. While the Subclass 602 visa mostly does not allow for a waiver, other visa subclasses are governed by Public Interest Criterion (PIC) 4007, which provides this option.
To pursue this pathway, you must fully meet all the other eligibility criteria for the new visa. The key benefit is that a new application can open the door to a health waiver, allowing the Department of Home Affairs to consider whether the compassionate and compelling circumstances of your case outweigh the potential health costs.
Common visa categories that often include a health waiver provision under PIC 4007 include:
| Visa Category | Examples / Subclasses |
|---|---|
| Partner visas | Subclasses 820/801 and 309/100 |
| Child visas | Subclasses 101 and 802 |
| Parent visas | (No specific subclasses listed) |
| Certain Skilled or Business visas | (No specific subclasses listed) |
Seeking Ministerial Intervention
In exceptional situations, you can request a Ministerial Intervention in your case after a visa refusal. Ministerial Intervention is a discretionary power that is only used as a last resort when a case presents unique or compassionate circumstances of a humanitarian nature.
This is not a standard visa application or appeals process and is reserved for the most compelling cases. The Minister may consider intervening if there are factors such as:
- The need for life-saving or critical medical treatment that is only available in Australia
- Strong humanitarian considerations that justify granting a visa
- Significant support from Australian citizens, permanent residents, or local hospitals who may be willing to cover costs
Request Your Free 15-Min Consultation
The Legal Test for a Health Waiver
Meeting Public Interest Criterion 4007
When a visa applicant fails the health requirement on the grounds of significant cost or prejudicing access to services, a health waiver can only be considered for certain visa subclasses. These visas are governed by PIC 4007 of the Migration Regulations 1994 (Cth), which gives the Department of Home Affairs the discretion to grant a visa despite the health issue.
The core legal test under PIC 4007 asks whether granting the visa would be unlikely to result in:
- “Undue cost to the Australian community” or
- “Undue prejudice to the access of an Australian citizen or permanent resident to health care or community services”
The term “undue” is generally interpreted to mean excessive, unwarranted, or too great in the specific circumstances of the case.
It is important to note that a health waiver is not available if an applicant fails the health requirement because they pose a public health risk, such as having active tuberculosis.
Balancing Costs vs. Compassionate & Compelling Factors
The decision to grant a health waiver involves a balancing exercise. A decision-maker must weigh the potential cost and service impacts identified by the MOC against the unique compassionate and compelling circumstances of the visa applicant. There is no fixed formula; instead, each case is assessed on its individual merits.
Several factors are considered to determine whether the benefits of granting the visa outweigh the potential burden on Australia’s health and community services. These can include:
| Factor | Explanation |
|---|---|
| Family and Community Ties | The impact a refusal would have on Australian family members, particularly the best interests of any Australian citizen children. |
| Ability to Mitigate Costs | Evidence that the applicant or sponsor can cover medical expenses through private health insurance, personal savings, or a high income. |
| Sponsor Hardship | Circumstances preventing an Australian sponsor from relocating, such as their health conditions, financial hardship, or lack of a migration pathway. |
| Contributions to Australia | The applicant’s potential to make a significant economic, social, or cultural contribution, such as possessing skills in high demand. |
| Other Compelling Factors | Any other humanitarian considerations, such as the lack of available treatment in the applicant’s home country or family settlement in a regional area. |
Request Your Free 15-Min Consultation
Building a Strong Case for Your Health Waiver
Obtaining an Independent Medical Specialist Report
A crucial element of a strong health waiver submission is an independent report from a qualified medical specialist. This document provides a detailed and credible clinical picture of your health condition, which can be vital in addressing the concerns raised by the MOC.
The report should be comprehensive and specifically tailored to the requirements of the visa application. An effective specialist report should clearly address the following points:
| Report Component | Required Details |
|---|---|
| Diagnosis and Prognosis | Must confirm the exact diagnosis, current treatment plan, and long-term prognosis, including the stability of the condition. |
| Detailed Cost Analysis | Should provide a realistic estimate of ongoing medical care costs in Australia, including medications, specialist visits, and hospitalisations. |
| Treatment and Management | Needs to detail the specific medical care required and state if it can be managed through private providers to avoid reliance on public funding. |
| Impact on Services | The specialist should comment on the likelihood of the condition requiring services in short supply, such as organ transplants or dialysis. |
Proving Financial Capacity to Mitigate Costs
A key part of a successful health waiver application is demonstrating your capacity to cover medical expenses without burdening the Australian public health system. Your submission must include robust financial evidence to show how you will mitigate the potential costs associated with your health condition.
This evidence helps prove that granting the visa is unlikely to result in “undue cost” to the Australian community. You can demonstrate your ability to mitigate costs by providing documents such as:
| Evidence Type | Description / Examples |
|---|---|
| Private Health Insurance | A certificate for a comprehensive insurance policy that specifically covers the pre-existing condition. |
| Financial Capacity | Bank statements, proof of significant savings, or evidence of assets and a high income that can be used for medical expenses. |
| Sponsorship and Support | Written commitments or sponsorship letters from Australian relatives, employers, or community organisations willing to fund treatment. |
| Employment Evidence | Letters from employers confirming ongoing work or strong job prospects, demonstrating the ability to contribute through taxes and self-support. |
Documenting Compassionate & Humanitarian Factors
The decision to grant a health waiver involves a balancing exercise, weighing the potential costs against the compassionate and compelling circumstances of your case. Documenting these factors is essential to show the human impact of a visa refusal and to argue that the benefits of granting the visa outweigh the health-related concerns.
Strong compassionate and humanitarian factors can include:
| Factor | Description / Examples |
|---|---|
| Impact on Australian Family Members | The adverse emotional, financial, or practical impact a refusal would have on Australian citizen or permanent resident family members, especially children. |
| Sponsor Hardship | Evidence that an Australian sponsor would face significant hardship if forced to relocate (e.g., health conditions, financial difficulties, no migration pathway). |
| Contributions to Australia | The applicant’s potential to make a significant economic, social, or cultural contribution, such as having skills in high demand. |
| Lack of Alternatives | Evidence that necessary medical treatment is unavailable in the home country or other strong humanitarian reasons to remain in Australia. |
Request Your Free 15-Min Consultation
Other Options After a Medical Visa Refusal
Appealing to the Administrative Review Tribunal
If your Subclass 602 Medical Treatment visa application is refused on health grounds, you are entitled to appeal the decision to the Administrative Review Tribunal (ART), which has now integrated the former Administrative Appeals Tribunal (AAT).
When appealing your refusal, keep in mind:
- You typically have only 21 days from the date of the refusal notice to lodge an appeal
- An ART appeal involves a merits review, where the tribunal takes a fresh look at your case
- The tribunal evaluates whether the Department of Home Affairs applied the law correctly
- You can provide new evidence demonstrating your compelling need for the visa or showing reduced potential cost to the Australian community
This appeal process offers an important opportunity to have your circumstances reassessed by an independent body.
Request Your Free 15-Min Consultation
Conclusion
A refusal of a Subclass 602 Medical Treatment visa on health grounds is not necessarily the outcome for an applicant. Understanding the health requirement, exploring alternative visa pathways that allow for a health waiver, and building a compelling case with strong evidence are crucial steps in seeking a positive resolution.
Navigating the complexities of health waivers and visa appeals requires specialised legal expertise. If you are facing a medical visa refusal, contact Moya Migration Law’s medical visa refusal appeal lawyers in Adelaide today for tailored strategies and hands-on advocacy to help secure your best possible outcome.
