Australian Immigration Article

The Background: A Strong Partner Visa Case Hits an Unseen Wall

Let me introduce you to a couple in their mid-30s. The sponsor, an Australian citizen, and his partner from the United States had built a life together in Australia. They’d met at work, fallen in love, married, and welcomed a child.

The US partner was on a Temporary Skill Shortage (subclass 482) visa, but as it neared its end and other options were exhausted, applying for an onshore partner visa (subclass 820) was the clear next step to secure their family’s future in Australia.

They prepared the 820 partner visa application themselves. With a strong relationship history, a wealth of evidence, and a young Australian child they were raising together, everything seemed to be progressing smoothly. They lodged a comprehensive, do-it-yourself application that they believed ticked all the boxes.

(A couple prepares their own 820 partner visa application, believing they’ve met all the requirements, unaware of the hidden challenge of the Australian visa health requirement.)

The Unexpected Hurdle: Australian Visa Health Requirement

As part of the process, the applicant was asked to complete her visa medical examination. She did so without a second thought. Soon after, she received a Request for Further Information (RFI) asking her to undergo additional medical checks. Thinking this was just a routine part of the process, the couple complied and didn’t worry too much.

Then, the letter arrived.

It was a formal notification from the Department advising that the applicant did not meet the health requirement for the visa. They were in shock. They couldn’t understand how this could have happened. This is when they contacted us.

(A moment of disbelief: The couple receives a Department of Home Affairs letter stating the applicant may not meet the Australian visa health requirement, triggering potential partner visa refusal on health grounds.)

Understanding the Visa Health Requirement and Partner Visa Refusal Health Reasons

When you apply for most Australian visas, you must meet what is known as Public Interest Criterion (PIC) 4005 or 4007 depending on the visa type. The purpose of this requirement is to protect the Australian community from public health risks and to contain public expenditure on health care and community services.

In our client’s case, she had a form of arthritis. While it was managed effectively with daily medication and ongoing treatment, allowing her to live a full and active life, the Medical Officer of the Commonwealth (MOC) who assesses these cases saw it differently.

Under immigration policy, an applicant is deemed to have failed the health requirement if they have a condition that is likely to result in “significant” costs for health care or community services.

As of 1 July 2024, the policy threshold for ‘significant costs’ is AUD $86,000 over a potential visa period.

The Department’s assessment estimated the potential cost of our client’s arthritis treatment to be over $300,000. Because this figure vastly exceeded the threshold, she was found not to meet the health requirement, and a waiver was now necessary to save the application.

(The applicant’s arthritis treatment costs were estimated at over $300,000  far above the PIC 4007 threshold, requiring a detailed partner visa health waiver submission.)

Arguing for a Health Waiver and Compassionate and Compelling Circumstances

Fortunately, for many partner visas, a provision for a health waiver exists. A health waiver is not an automatic process and it’s a discretionary power that must be argued for and won.

To obtain a health waiver, we had to demonstrate two key things:

1. The applicant satisfied all other criteria for the visa (which, in this case, she did).
2. Granting the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to the access of Australian citizens or permanent residents to services.

To do this, we needed to present compelling and compassionate circumstances that were strong enough to outweigh the significant estimated costs.

Our approach was to build a comprehensive submission that painted a full picture of the family and their situation. We focused on several key factors:

• The Best Interests of the Australian Child: We made a powerful case about the profound emotional and practical impact that refusing the visa and forcing a family separation would have on their young Australian citizen child.
• The Sponsor’s Contribution: The Australian sponsor had a significant role in his professional field, with an income well above the high-income threshold. We argued that his ability to continue contributing to the Australian economy and workforce would be severely hampered if his family unit was broken apart.
• The Applicant’s Potential: We highlighted the applicant’s own skills, qualifications, and strong employment prospects, demonstrating her potential to contribute positively to Australia both socially and economically.
• Other Mitigating Factors: We also presented evidence about their stable financial situation, their strong community ties in Australia, and their ability to offset some potential health costs.

(Health concerns don’t always mean visa refusal. Strong community ties and the ability to offset medical costs can be part of the compassionate and compelling circumstances required for a health waiver.)

The Result: Partner Visa Granted

Our detailed submissions were successful. The decision maker was satisfied that the compassionate and compelling circumstances outweighed the potential cost. The health requirement was waived and the family received the fantastic news that their partner visa had been granted. They could finally move on with their life together in Australia, free from visa uncertainty.

(A well-prepared health waiver submission, based on compassionate and compelling circumstances, led to the successful grant of the partner visa despite initial health requirement refusal under PIC 4007.)

Key Lessons from This PIC 4007 health Waiver Journey

• A “Manageable” Condition Can Still Trigger a Visa Refusal: Do not underestimate the health requirement. A condition that you manage perfectly well in your daily life can be assessed very differently by a Medical Officer of the Commonwealth looking at long-term potential costs.
• The Cost Estimate is Key: The process hinges on the estimated cost of your condition. If this estimate exceeds the “significant cost” threshold, a health waiver becomes your only path forward (if available for your visa).
• Not All Visas Have a Waiver Provision: This is critical. While many family visas, like the partner visa, have a health waiver provision, many skilled and other visa types do not. If you have a health condition, it is vital to get advice early to understand if a waiver is an option for you.
• Compelling Circumstances are Personal: There is no checklist for what constitutes “compelling and compassionate” circumstances. A successful waiver submission requires a holistic and persuasive argument based on your unique personal situation.
• Early Advice Can Make a Difference: If our clients had sought advice before lodging, they may have been able to prepare for the health waiver from the outset, potentially reducing the period of intense worry they experienced after receiving the notice.

If you have a health condition and are concerned about how it might impact your Australian visa application, we invite you to reach out. Building a case for a health waiver requires careful preparation and a thorough understanding of the legal criteria.

To discuss your situation, you can reach out to our principal migration lawyer, Jay Son, directly by emailing him at jays@flowmigrationlaw.com.au to book a consultation. With over 8 years of dedicated experience in Australian immigration law, Jay has guided many clients through these complex health matters, helping them build a persuasive case for the Department.