Significant Decision Concerning the Health Criterion


Health Criterion May Not Defeat Visa Application If There Is Strong Proof That A Member of Family Unit Will Not Migrate To Australia

Is there any way to overcome the seemingly insurmountable barrier of the “one fails, all fail” health criterion?
Suppose an applicant for a visa that would confer permanent residency – for example an applicant for a visa under the “Employer Nomination Scheme” – subclass 186 – has a member of her family unit who has been determined by a Medical Officer of the Commonwealth (“MOC”) to have a disease or condition that would be likely to require health care or community services that would be likely to “result in a significant cost to the Australian community” in those areas: is it all over?
Or imagine it is possible to produce evidence that it is unlikely that the family member who would require health care or community services would ever to seek to migrate to Australia: what then?
These interesting and important questions were at the heart of a case that was recently decided by Judge Smith of the Federal Circuit Court, Gella v Minister for Immigration & Anor (2018) FCCA 2647 (8 November 2018). 
There was no question in this case that a member of the family unit of the applicant (a nurse who is a citizen of the Philippines) did not meet the criterion that, if he were in Australia, he would require health care and community services that would result in significant costs:
The applicant’s son suffered from a severe visual impairment which was likely to be permanent and also had a mild developmental delay which was also likely to be permanent. The MOC had given an opinion that the son would be likely to require special education services, disability services and residential care services that would cost more than $3.8 million during the period of his stay in Australia.
The applicant was able to produce evidence, however, that arrangements had been made in the Philippines for a carer to look after the son, that the carer had been doing so for the 3 ½ years prior to the filing of the visa application and considered the son to be one of her own children, and that the applicant, a single mother, had been providing for the son financially but would not have been able to do so if she were required to return to the Philippines.
The applicant sought a waiver of the health requirement on the basis that there was no intention for the son ever to migrate to Australia, that he had never travelled outside the Philippines and that the arrangements for his care there were long-standing and stable.  It was therefore submitted that the grant of a visa to the applicant would not be likely to result in significant health costs to the Australian community.
Neither the Department, in the first instance, or the Tribunal, on merits review, was persuaded by this evidence.
The Tribunal’s decision focused on the possibility that the arrangements for the care of the applicant’s son that had been made in the Philippines might break down, and that the applicant would in those circumstances seek to bring her son to Australia.
The Tribunal’s reasoning went along the following lines: Although the arrangements for the applicant’s son had been stable in the past, those arrangements might not be permanent, as the carer was providing care for the son as an employee and not a relative. The Tribunal also stated concerns that the care arrangements might change after the applicant’s mother died and the son had finished high school, and that at that point the applicant might decide to apply for the son to migrate to Australia in view of the level of health services available in Australia. Additionally, the Tribunal expressed concerns that the applicant would not be able to find another carer in the Philippines to provide the same level of support to her son if for some reason the existing care arrangement were to break down.
Judge Smith found that the Tribunal’s analysis in this case was affected by jurisdictional error.
It was Judge Smith’s conclusion in this case that the Tribunal’s analysis had mistakenly focused on “possibilities” concerning what might happen to the care arrangements for the applicant’s son at some time in the future, and had stopped short of addressing the essential question under Public Interest Criterion 4007 of whether it was “likely” that the grant of the visa would result in undue cost to the Australian community or undue prejudice or the access of health care by Australian citizens or permanent residents.
So the lesson that can be taken away from this decision (albeit only one of the Federal Circuit Court) is that if sufficient evidence can be produced to show that a member of the applicant’s family unit who would not satisfy the health criterion is unlikely ever to migrate to Australia, then there is at least a possibility that the primary applicant for the visa may be successful.
It should be noted that another way of attacking the issue presented by this case would be to make arguments that it would be unreasonable in the circumstances to require a family member who has absolutely no intention of ever seeking to migrate to Australia to undergo assessment in relation to the health criterion.
That may well be a strategy that could work to try to get around the “one fails, all fail” barrier presented by the health criterion!


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