Other Australian Specialist Areas:
Health Checks

Certain health conditions may affect your Australian migration or residency application - for example, HIV, cancer, active tuberculosis (TB), or Hepatitis B.

Information below may help you to generally better understand:

• The circumstances in which health checks are required
• The procedures for such checks
  
• When such checks are not required and why
  
• The avenues of review or appeal of decisions on health requirements

Overview of Australian Health Requirements
Permanent Visas
Temporary Visas
Opinion of a CMO
Waiver of the Health Requirements
Period of Validity of Health Checks

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Overview of Australian Health Requirements

The objectives of the health requirement are:

• To protect the Australian community from public
  health and safety risks;
  
• To contain public expenditure on health care and
  community services
  
• To safeguard the access of Australian citizens and permanent residents to health care and community services in short supply.

The Migration Act gives the Department of Immigration the power to require a visa applicant to undergo a medical examination, generally by a Medical Officer of the Commonwealth (CMO) if the applicant is in Australia, or at the Australian Embassy in the country where the application is lodged (if a CMO is available), and if not, by a doctor approved by the relevant Embassy.

The Migration Act provides that a visa cannot be granted unless the relevant health requirements are satisfied.

If information known to the Department of Immigration indicates that an applicant may not meet the health requirements for the visa for which they have applied, the applicant must be required to undergo a medical examination and the results referred to a CMO.

The health criteria each require that an applicant:

• Is free from tuberculosis
  
• Is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community
  
• Is not a person who has a disease or condition that, during the proposed period of stay in Australia, would be likely to:
  • result in a significant cost to the Australian community in the areas of health care or community services; or
  • prejudice the access of an Australian citizen or permanent resident to health care or community services; and
  • has provided a signed undertaking if so requested by a CMO to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment

On the question of significant cost, in the case of MIMA v Seligman [1999] FCA 117 (1 March 1999), the Australian Full Federal Court stated:

"The governing element of the criterion in Item 4005(c)(i) is "significant cost to the Australian people." The policy behind the test is clear. It is to limit the entry into Australia for long term residence of persons who are likely to be a financial burden upon the Australian community. Having regard to that purpose, it would be artificial to construe the term "community services" so narrowly as to exclude pension benefits which may become payable to the proposed entrant. The words are broad enough to cover such payments and in context are no doubt intended to do so. In reaching this conclusion it is not necessary to have regard to the amendment of the regulations which followed upon his Honour's decision and introduced a definition of "community services" including such payments."

To remove any doubt, 'community services' is now defined in the Migration Regulations to include 'the provision of an Australian social security benefit, allowance or pension'.

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Permanent visas

Migration Regulations requires people applying to migrate to Australia permanently to undergo health checks before coming to Australia unless a Gazette Notice has been published exempting nationals of their country from this requirement.

Applicants from the countries so gazetted remain subject to the health criteria, but there is no requirement for the Department of Immigration to seek a CMO's opinion on whether they meet the criteria.

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Temporary visas

People applying for temporary visas may be required to undergo medical evaluation and/or X-rays where it is thought their health is of special significance to their work or lifestyle (for example, teachers, chefs/cooks).

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Opinion of a CMO

The structure of the health criteria makes certain questions turn on the opinion of a Commonwealth Medical Officer (CMO). Prior to 1 November 1995, the decision as to whether a person had a disease or condition was considered to be for the Department of Immigration and not for the CMO. Once it was decided that a person has a disease or condition the opinion of the CMO as to the consequences of that disease or condition was not open to question by the Department of Immigration nor was it reviewable by the former Immigration Review Tribunal.

The current Migration Regulation provides that:

• The Department of Immigration must seek the opinion of a CMO on whether a person (whether the applicant or another person) meets the relevant health requirements
• For the purposes of deciding whether a person meets a requirement or satisfies a criterion, the Minister must accept the opinion of the CMO on such matters

The Full Federal Court in the case of MIMA v Seligman held that a medical opinion under the Migration Regulations is a judicially reviewable decision. It remains the case, however, that such CMO determinations are not open to question either by Departmental decision makers or the Migration Review Tribunal.

Although the CMO's opinion is determinative of the issue, at any point in the consideration of a visa application the decision maker, whether it be the Department of Immigration or the Migration Review Tribunal, can refer fresh medical evidence to the CMO with a request that the CMO reconsider his or her opinion.

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Waiver of the Health Requirements

The Migration Regulations allow a waiver of the health requirements for some close family members or for humanitarian applicants such as refugees where the applicant does not represent a risk to public health or safety in Australia. The waiver of the health requirements applies where:

• The applicant satisfies all of the other relevant criteria for the grant of the visa
• The Minister is satisfied that the granting of the visa would be unlikely to result in:
  • undue cost to the Australian community; or
  • undue prejudice to the access to health care or community services of an Australian citizen or permanent resident

The waiver, however, is restricted. This, in effect, gives the CMO the power to prevent the waiver from being exercised by finding that an applicant has a disease or condition, which poses a threat to public health or the Australian community.

Legal challenges to waiver decisions and discretionary decision-making in general is complicated.

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Period of Validity of Health Checks

Departmental policy states that health checks are generally valid for 12 months but the former Immigration Review Tribunal has held that, in the absence of any express statutory provision, they should remain valid for a reasonable period, depending on the circumstances of the case.

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