AAT

HEALTH WAIVERS IN RELATION TO VISA APPLICATIONS

Australian visas & health criteria

Australian migration legislation requires that almost all applicants seeking a visa to travel to, or remain in, Australia must meet prescribed health criteria. These criteria are intended to protect the Australian community's standard of public health and safety, expenditure on health and welfare, and access to health services.

All permanent and certain temporary visa applicants are required to undergo health examinations as part of the visa application process to determine if they meet the health requirement.

In practical terms this means that a visa applicant must be free from a disease or condition that would require health care or community services that would result in a significant cost to the Australian community, or prejudice the access of an Australian citizen or permanent resident to health care or community services (regardless of whether the health care or community services will be used in connection with the applicant).

Health waivers available to certain visa classes

A health waiver is available to be considered for certain visas.  This is referred to by the Department of Immigration & Border Protection (DIBP) as a PIC 4007 waiver.

Visas that have a health waiver available include partner, child, skilled independent subclass 189 (NZ stream only); subclass 888 (permanent) and ENS/RSMS visas but only for the temporary residence transition stream.

A health waiver may only be exercised after a Medical Officer of the Commonwealth has determined that the visa applicant does not meet the health requirement and where the DIBP is satisfied that the granting of the visa would be unlikely to result in:

  • undue costs or
  • further pressure on health care and community services that are in already short supply in Australia.  (This is referred to as 'prejudice to access'.)

Case study: medical condition estimated to cost $3.5 million over a lifetime

Putt Legal was approached some time ago by a client who had worked for a mining services company in Australia on a subclass 457 visa. The client was originally from Africa, and had a partner and several children.

After a number of years on the subclass 457, the family made an application for a permanent ENS temporary residence transition stream visa (subclass 186 visa). As noted above, this visa has a health waiver available.

One of the client’s children was diagnosed by a Medical Officer of the Commonwealth with a medical condition that was likely to require health or community services costing an estimated $3.5 million over the child’s lifetime.

The DIBP then considered whether to exercise the health waiver, but was not satisfied that the cost identified by the Medical Officer was outweighed by mitigating factors and/or compassionate and compelling circumstances. As a result, the subclass 186 visa application was refused for all family members (because if “one fails, all fail”). The family appealed to the Administrative Appeals Tribunal (AAT) and engaged Putt Legal’s services.

Significant evidence was placed before the AAT that showed that the family had an ability to defray costs to the Australian community; considerable employment skills; had actively contributed to Australian society; and that there were compelling and compassionate circumstances that showed that the child affected by the medical condition would find it extremely difficult to return and live in the African country from which the family originally came. As a result, the AAT found that although the potential costs of the child’s medical condition were high, the granting of the visa was unlikely to result in undue costs to the Australian community when all circumstances were considered.

The AAT remitted the visa application to the DIBP for processing, and it is likely that all family members will be granted permanent residence in the near future.

If you or a family member have a medical condition that you are concerned may adversely affect a permanent or temporary visa application, we suggest that you contact us for a confidential discussion as to your options.

Administrative Appeals Tribunal video guides

The Administrative Appeals Tribunal (AAT) provides a ‘merits review’, that is an independent review, of decisions made by the Department of Immigration and Border Protection, where a decision is a reviewable decision and unfavourable to the applicant.

You can learn more about appeals to the AAT from our blog: http://www.puttlegal.com.au/category/blog/appeals-to-the-administrative-appeals-tribunal-aat.

The AAT has created a number of video guides to assist in giving applicants and witnesses an understanding of the way the AAT works. These video guides cover the following topics:

  • About the AAT;
  • Applying for a review;
  • After an application for review is lodged;
  • Attending a conference;
  • Attending a hearing;
  • Decisions.

We recommend you view these videos if you are considering an appeal to the AAT or in preparation for a hearing of an appeal already lodged.

You can find these video guides at: http://www.aat.gov.au/resources/video-guides

Call Putt Legal at 9221 7682 if you require assistance with your AAT appeal.

Appeals to the Administrative Appeals Tribunal (AAT)

Have you had a visa refused or cancelled and do you have a right of appeal to the AAT?

What does the AAT do?

The AAT provides an independent and thorough review of decisions made by the delegates of the Minister for Immigration and Border Protection, otherwise known as ‘primary decision makers’ where a decision in relation to a reviewable visa is unfavourable to the applicant.

The AAT is not a policy or law-making body and it does not engage in political debate on refugee or legislative policy issues.

The AAT has the power to:

  • affirm a decision
  • vary a decision
  • set aside a decision and substitute a new decision, or
  • remit a decision to the decision-maker for reconsideration.

Applying for Review by the AAT

To apply for review:

Applications can be made online or application forms can be printed out from the tribunal’s website.

Applications must be lodged within the prescribed time period.

The AAT does not have the power to override the time limits prescribed by legislation, and applications lodged outside the timeframes cannot be accepted.

What do you need to do to succeed at the AAT?

Many of the matters that come before the tribunal are a result of visa applications that are refused due to a lack of information and lack of credible supporting evidence being provided to the primary decision maker.

When applying for a review you have to look carefully at the material that was provided to the primary decision maker and ascertain what additional information or documentation would assist the applicant to demonstrate that they satisfy the criteria in dispute for the particular visa that is being sought

The delegate’s decision will generally indicate the material that was lacking for a favourable decision in the initial assessment process. 

If this material is available, providing it to the tribunal may facilitate a favourable decision on the papers to be made. 

How do you adduce additional evidence before the Tribunal?

Oral evidence given under oath or affirmation in Tribunal hearings

Any evidence given by applicants and other witnesses ought be in the form of a statutory declaration or sworn evidence at the hearing.  This enables the tribunal to place more weight on it.

Any hearing invitation will ask you to provide any up to date submissions prior to the hearing (usually 7 days prior).

Hearings

Hearings may be held in person before a member in Perth, by way of video link to a member sitting in another state, or in some cases may be by phone (e.g. visitor visas).

The order of processing cases

The following cases are given the highest priority:

  • Cases involving persons in immigration detention.
  • Cases where there is a question as to whether or not we have jurisdiction to conduct a review.

The following cases are to be given the next highest priority:

  • Cases where the President or a Member or officer authorised by the President, decides there are compelling reasons for prioritising the case.
  • All visa cancellation cases.
  • All protection visa cases.
  • Cases remitted or returned from a court for the AAT to reconsider.
  • Cases remitted to the Department of Immigration and Border Protection and which have again been refused, resulting in the applicant making a further application for review.
  • Close family visitor refusal cases in accordance with regulation 4.23 of the Migration Regulations 1994.

Time frame for decisions

As each case is different, it is difficult to say how long it will take for a decision to be made on your case. The length of a review can vary depending on the type of case, the investigations that might be required, the overall workload of the AAT, and the priority given to the case.

In some cases, the Member may announce the decision at the end of the hearing.  However, in most cases a decision will be given at a later date.

Video Guides for Applicants

The AAT has created a useful video for applicants as to how the appeal process works - http://www.aat.gov.au/migration-and-refugee-division/video-guides-for-applicants

These videos provide information about applying to the Migration and Refugee Division of the AAT for review of visa refusals and cancellations.

The videos are available in English, Arabic, Farsi, Mandarin, Punjabi and Vietnamese.

 

Assistance by Putt Legal

If you have had a visa refused or cancelled and have appeal rights, or are unclear whether you have a right to appeal, we suggest that you contact us as soon as practicable to discuss.

Putt Legal’s lawyers are experienced at assessing cases and successfully advising and representing clients at the AAT. Of particularly importance is an honest and accurate assessment of your prospects of success, consideration of what further evidence is required for the appeal, and the preparation of detailed written submissions.

Please contact Alisdair Putt or Jessica Edis at Putt Legal to discuss further.