Health and Criminal waiver

Australia has some of the toughest health and character requirements in the world for visa applications and Australian citizenship applications. If you have any concerns about whether you may meet the health or character requirements, or if you have received a letter from the Department of Home Affairs (DoHA) advising you that your visa or citizenship application is subject to refusal for health or character reasons, I can help determine your options and advise you on the best way to proceed.

Health Waivers and the Health Criteria (Public Interest Criteria) PIC 4005 and PIC 4007

Australia strictly screens applicants applying to nearly all visa subclasses for health conditions prior to issuing visas. This is a immigration legislation objective, aimed at ensuring that current Australian Citizens and Permanent Residents are not unduly affected by health related costs or issues with access to Australian health care and community services by those migrating to Australia regardless of whether the health care or community services will actually be used in connection with the applicant. The health assessments are also used to screen for infectious diseases which may present a risk to the Australian public.

The health criteria is a ‘one fails all fail’ criteria and that this applies to nearly all temporary and permanent visas. This means that if a secondary applicant (your spouse/de-facto partner or child) fail the health criteria, no one can be granted the visa. The health criteria generally needs to be satisfied by all ‘members of the family unit’, regardless of whether they are included in the application or not. The only exception is where the Department of Home Affairs has assessed that it would be unreasonable for the non-migrating “member of the family unit” to do so.

Where an applicant is assessed as having such a condition, they will not be granted a visa unless a health waiver is granted. The majority of permanent visas have PIC 4005 applicable and it does not provide an option for a health waiver. However, this does not mean that the very fact of assessing the state of health, or the costs of medical expenses that may be required in the event of a health disorder determined within the framework of the PIC 4005 criterion, cannot be reasonably challenged at the stage of determining the health status and applying the PIC 4005 criterion. Countervailing arguments can be made at the health waiver stage. Prior to making a decision on the visa, the Department will give the applicant a time frame in which the applicant may argue that despite having a condition that will be of significant cost, or prejudice the access of Australian citizens to services, the applicant will not cause undue cost to the Australian public.

In the case of PIC 4007, when assessing the possibility of obtaining a positive decision for an applicant with health conditions, it is important to take into account that the PIC 4007 criterion provides for the possibility of lifting restrictions on health requirements (health waiver) for any person specified in the visa (‘members of the family unit’, regardless of whether they are included in the application or not, unless the Department has assessed that it would be unreasonable for the non-migrating “member of the family unit” to do so).
The PIC 4007 is applicable to a Partner visa, which suggests a “fallback pathway” in the event of such as Subclass 189, or Subclass 190, or Subclass 491 visa failure doe to the health conditions not arguable under PIC 4005.
The Delegate, in the event of a situation regarding the health of a person falling under the PIC 4005 or PIC 4007, is bound by the decision of the Medical Officer of the Commonwealth (MOC), which evaluates the health status and makes this decision. In other words, the officer, when making a decision, is obliged to accept the opinion of the MOC as correct and obliging to make an appropriate decision.

Significant costs
MOC must provide an opinion as to whether an applicant’s condition or disease would be likely to result in health care and community service costs if a visa were to be granted.

For temporary visa applicants (other than applicants for provisional visas), the estimated costs for their proposed stay in Australia is assessed over the period of stay that the visa officer intends to grant the visa. For example, a student visa applicant with health care costs of AUD 16 000 who will be granted a one year visa should be found to meet the health requirement. On the other hand, a student visa applicant with costs of AUD 16 000 a year who will be granted a four year visa would not meet the health requirement.

For temporary visas, certain health care and community services are excluded from the cost assessment.

For permanent and provisional visa applicants, the time period for estimating health care and community service costs against the significant cost threshold is calculated as follows:

• if the applicant is aged less than 75 years: a five year period; or,
• if the applicant is aged 75 years or older :a three year period;

unless:

• the applicant has a condition that is permanent and the course of the disease is inevitable or reasonably predictable (65% likelihood) beyond the five year period- in these circumstances, the applicant would be assessed for a maximum of 10 years. When assessing costs, the MOC should estimate costs for a period up to a maximum of 10 years.
• the applicant has an inevitable or reasonably predictable (65% likelihood) reduced life expectancy due to their health condition or disease -in this case, the applicant should be assessed for a time period up to a maximum of 10 years.

Prejudice to access
MOC must also assess whether an applicant’s condition or disease would be likely to prejudice the access of Australians to health care and community services if a visa were to be granted, that is, the applicant would require access to health care or community services that are in short supply (as advised by the Department of Health).

Prejudice to access will occur if in the MOC’s opinion a hypothetical person with a condition of the same form and severity as the applicant’s would be likely to require access to the following services, which are considered to be in short supply:

• organ transplants (including bone marrow transplants), and
• dialysis.

How I can help
These are just a few of the issues that I can assist you with as the Australian Registered Migration Agent in case of known health conditions:

• Providing advice on the likely outcome of lodging a visa when there are known health conditions.
• Prepare comprehensive, detailed health waiver application package to present specific legal arguments to address the health waiver.
• Assisting with appealing a decision by the Department of Home Affairs to refuse a visa application.

I can analyze your circumstances, identify any areas of risk with known health conditions and discuss the most appropriate strategy to meet your goals. I can also assist you in many different ways. For example – full service from preparation of evidence to visa decision, a consultation on a specific point of concern or a review before lodgement for peace of mind.

Character requirements waivers and Character requirements for Australian visas – PIC (Public Interest Criteria) PIC 4001, PIC 4002, PIC 4003.

The applicant must be of good character to visit or live in Australia. This means the person must pass the “character test”, and remain of good character.

Character requirements
The character requirements are set out under section 501 of the Migration Act 1958 and a number of the other legislative documents, i.e.:
Migration Act 1958 s499, s116(1)(e) – Risk to public health, safety,etc

Migration Regulations 2.03AA Criteria applicable to character tests and security assessments
Autonomous Sanctions Regulations 2011
Character and security – Security Checking Handbook

Character and security instructions – Penal checking handbook

The Penal Checking Handbook and Security Checking Handbook have been classified as “For official use only’ and is not for public release.

The applicant may not pass the character requirements test if:

• The applicant has a “substantial criminal record”
• The applicant has been convicted of escaping from immigration detention, or convicted for an offense that the applicant committed:
• while were in immigration detention
• during an escape from immigration detention
• after an escape, but before the applicant was taken into immigration detention again
• The applicant has is or has been a member of a group or organization, or had or have an association with a person, group or organization that the Minister reasonably suspects of being involved in criminal conduct
• the Minister reasonably suspects that the applicant has been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not the applicant has been convicted of such an offense
• The applicant’s past and present criminal or general conduct shows that the applicant is not of good character
• there is a risk that while the applicant is in Australia the applicant would:
  • engage in criminal conduct
  • harass, molest, intimidate or stalk another person
  • vilify a segment of the Australian community
  • incite discord in the Australian community or in a part of it
  • be a danger to the Australian community or a part of it
• The applicant has been convicted, found guilty or had a charge proven for, one or more sexually based offenses involving a child
• The applicant is a subject to an adverse security assessment by the Australian Security Intelligence Organization
• The applicant is a subject to an Interpol notice, from which it is reasonable to infer that the applicant is a direct or indirect risk to the Australian community, or a segment of the Australian community
• The applicant is or have been convicted of a domestic violence offense or have ever been subject to a domestic violence order
• The applicant is a subject to the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from traveling to, entering or remaining in Australia;
• The applicant is a person determined by the Foreign Minister, or a person authorized by the Foreign Minister, whose presence in Australia is, or would be, contrary to Australia’s foreign policy interests;
• The applicant is a person determined by the Foreign Minister, or a person authorized by the Foreign Minister, whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

The applicant has a “substantial criminal record” for the purposes of the character test in the Migration Act if the applicant has been:
• sentenced to death or imprisonment for life
• sentenced to a term of imprisonment of 12 months or more
• sentenced to two or more terms of imprisonment (even if served concurrently) where the total is 12 months or more
• found by a court to not be fit to plead in relation to an offence but found to have committed the offence and detained in a facility or institution
Conviction that has been quashed or pardoned would be disregarded.

The applicant has a “substantial criminal record” in relation to “relevant offences”.
Relevant offences include the following:
• Violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence
• The harassment, molestation, intimidation or stalking of a person
• The breach of an apprehended violence order
• Firearms or other dangerous weapons
• People smuggling
• Human trafficking
• Attempting to commit an offence involving any of the matters mentioned above or below
• Aiding, abetting, counselling or procuring these offences.

Possible Exemptions
However, despite the above, a sponsorship application may be approved if it is reasonable to do so having regard to the following:
• The length of time since the sponsor completed the sentence for the relevant offence;
• The best interests of minor children of the sponsor/and or minor children of the visa applicant;
• The length of the relationship between the sponsor and the primary visa applicant;
• The protection of the Australian community from criminal or other serious conduct;
• Expectations of the Australian Community;
• International obligations;
• Impact on family members;
• Impact on victims;
• Impact on Australian business interests.

How I can help
Australia’s tough new rules on character consideration that even a series of relatively minor offences can result in visa or citizenship refusal. If you’re concerned about whether your criminal record or other previous incidents in your life would be likely to cause a visa or citizenship refusal, or if you’ve received a letter from DoHA about character consideration with your application, I can help determine if and how you can meet the immigration legal requirements for character test.
These are just a few of the issues that I can assist you with as the Australian Registered Migration Agent in case of known character requirements issues:
• Providing advice on the likely outcome of lodging a visa when there are known character consideration.
• Prepare comprehensive, detailed character waiver application package, that shows, despite your previous history, why you should not be refused a visa or citizenship for Australia based on your previous record.
• Assisting with appealing a decision by the Department of Home Affairs to refuse a visa application.
• If you’re in immigration detention or jail, I can represent you before DoHA or Migration Tribunal to fight hard for your visa or citizenship to give you the best chance to successfully migrate to Australia and deal with any character allegations
I can analyse your circumstances, identify any areas of risk with known character requirements issues and discuss the most appropriate strategy to meet your goals. I can also assist you in many different ways. For example – full service from preparation of evidence to visa decision, a consultation on a specific point of concern or a review before lodgement for peace of mind.

If you require any further information ,or you need need help in obtaining a waiver, or need assistance with any other matters related to immigration to Australia, please book a consultation.