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Health Waivers & Character Issues

Health & Character Waiver Applications
Brett Slater Solicitors > Health Waivers & Character Issues
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Health Waivers, Character Issues and Schedule 3 Matters

Let’s keep the language very simple; we don’t want to baffle anyone with jargon. Here is a quick summary of this category:

What is a Health Waiver?

The health status of an Applicant is very important. Essentially, an Applicant and their dependants (partner, family members, etc.), may need to pass a health test when applying for a visa. A health test is conducted by a medical doctor (normally of commonwealth status) who will assess an Applicant (or dependent) for certain health issues; for example, tuberculosis or HIV, or other less severe health conditions such as cochlear impairment.

An Applicant may be refused a visa on health grounds due to what is considered the ‘significant cost element’ associated with their particular health issue. There are common examples of this, but they mainly refer to the cost it would be to an Applicant (or the Commonwealth) to maintain that person’s health. The threshold under policy is AU$49,000.00 per annum.

If a medical doctor assesses an Applicants’ health and deems it grounds for a visa refusal, then a Health Waiver will be required.

A Health Waiver is used to try and satisfy the Department of Home Affairs that if they grant a visa to the Applicant, it would be unlikely that the Applicants health issue would result in significant costs or prejudice access to the Australian healthcare system. A waiver such as this is commonly referred to as a ‘PIC 4007 Health Waiver’.

A Health Wavier can only be considered for certain visa subclasses such as a child visa, partner visa, adoption visa or parent visa (though there are more subclasses where this can apply).

A Brett Slater Solicitor can assist with the preparation and application for a health waiver.

What does a ‘Character Issue’ consist of?

Character issues vary. Essentially, an Applicant for any Australian visa, must be ‘of good character’ and this is assessed by way of a character test. It is a review of an Applicant’s past and present conduct in society.

So, if an Applicant has a criminal record or associated with criminal organisations, or even organisations known or associated with war crimes for example, all this will be assessed under the ‘character test’. If an Applicant fails the character test, it could result in a visa refusal or can lead to cancellation of an existing visa. If a person holds a valid visa, this could also be cancelled if the character test is not met (so consider an example of a person who has a visa for a period of time, gets charged with assault or possession of drugs, then this could result in a failed character test and their visa being cancelled).

If you receive notice of a failed character test, seek legal advice immediately as cancellation leads to the Applicant becoming unlawful and subject to detention if not addressed quickly. It is important that a person acts as quickly as possible because time-limits apply. Depending on the circumstances, a Brett Slater Solicitor who has experience in this area of immigration law, can advise you on the best possible action to take and the likelihood of success.

What does Schedule 3 mean?

OK, we are not going to go into the detail on this (i.e., Migration Regulations 1994, Criteria 3001, 3004 of the regulations, etc., etc.), but just to simply say that if an Applicant applied for a Partner Visa or another visa subject to Schedule 3 in Australia, and at the time the Applicant lodged the application he/she did not hold a visa at the time of application (or was on a bridging visa in excess of twenty-eight days), the Applicant would have been an unlawful non-citizen. In this regard, the Applicant will be subjected to Schedule 3 criteria, unless a waiver can be obtained.

  • Criterion 3001 – an Applicant must not be unlawful or on a bridging visa for more than 28 days.
  • Criterion 3004 – an Applicant must demonstrate certain criteria (such as compelling reasons for not holding a substantive visa)

An Applicant can act straightaway when knowing they may not meet the criteria for 3004 by asking an expert immigration lawyer to prepare and lodge detailed written submissions to support the application for a visa. The submissions must address each element of the criterion, and ideally be prepared and lodge with the application (rather than be asked by the Department after the application has been lodged).

Brett Slater Solicitors can assist you with the following:

  • Initial assessment of an Applicant’s particular matter
  • Advice and guidance on what an Applicant may need to address when preparing a visa application
  • Preparation of the application and detailed written submissions
  • Researching relevant case law and aligning this with current policy
  • Requisitions from the Department
  • Preparing Health Waivers and explaining relevant elements

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