Health Requirements for Protection Visa 866

Can an Applicant With a Medical Condition Meet the Health Requirements for Protection Visa 866?

Yes. The health requirements for Protection Visa 866 are met by undergoing the medical examinations the Department of Home Affairs requires, not by being free of illness. The Subclass 866 criteria do not include public interest criterion 4005 or 4007, the general health requirement that allows many other visas to be refused where a condition is likely to result in significant health care costs. Clause 866.225 of Schedule 2 to the Migration Regulations 1994 prescribes only public interest criteria 4001, 4003A and 4019.

An applicant with a serious medical condition can therefore be granted a Subclass 866 visa if they are owed protection and meet the other criteria. The health requirements for Protection Visa 866 are found in clauses 866.223 to 866.224B, and they are directed at screening, in particular for tuberculosis.

This article answers the questions applicants with medical conditions most often ask. It explains how particular conditions are treated, when health can form part of the protection claim itself, and how medical evidence can affect the interview and the assessment of credibility. For an overview of the visa, see our Subclass 866 Protection visa page and our complete guide to the Subclass 866 Protection visa.

Health Requirements for Protection Visa 866 and Common Medical Conditions

The health requirements for Protection Visa 866 treat most medical conditions in the same way: the applicant must disclose the condition, attend the examinations and complete any further tests. The condition does not itself decide the application. The conditions applicants ask about most often are these.

Tuberculosis

Tuberculosis is the main public health concern the examinations are designed to detect, and it is the condition most likely to affect the process. An applicant found to have active tuberculosis can expect to be required to undergo treatment before the Department is satisfied that the health criteria are met. An applicant with inactive tuberculosis, or a past history of treatment, may be required to sign a health undertaking and attend follow-up appointments with a state or territory health service. Compliance with those requirements is essential.

HIV

HIV does not prevent the grant of a Subclass 866 visa. The general health requirement, under which the cost of HIV treatment can lead to refusal of other visas, does not apply. An applicant living with HIV should disclose the diagnosis, attend the examinations and bring evidence of current treatment. HIV status can, in some countries, also be relevant to the protection claim, as explained below.

Hepatitis B and C

Hepatitis B and C are treated in the same way. The applicant must complete the examinations and any further tests. The Department may refer the applicant for follow-up, but the condition does not of itself prevent grant.

Cancer and other chronic illness

Cancer, kidney disease, heart disease, diabetes and other chronic illnesses do not prevent the grant of a Subclass 866 visa. Their cost is not assessed under the health requirements for Protection Visa 866. The applicant should bring medical records to the examination so that the medical officer can assess the condition without unnecessary delay.

Disability

A physical or intellectual disability does not prevent the grant of a Subclass 866 visa. Where a disability affects the applicant's ability to attend an examination or an interview, the Department should be told in advance, so that reasonable arrangements can be made.

Mental illness

A mental illness does not prevent the grant of a Subclass 866 visa. It may, however, affect how the applicant gives evidence, and it may be relevant to the claim. Both points are covered later in this article.

Why the Health Requirements for Protection Visa 866 Differ From Other Visas

The health requirements for Protection Visa 866 differ from those for most other visas because the Subclass 866 visa exists to meet Australia's protection obligations. Most visas include public interest criterion 4005 or 4007, which can lead to refusal where a condition is a threat to public health or is likely to result in significant health care and community service costs. The Subclass 866 visa uses its own health criteria instead, and those criteria focus on examination.

This matters most to applicants who have been told, in the context of another visa, that their health would prevent a permanent visa. That advice may have been correct for a partner, skilled or student visa. It does not apply in the same way to the health requirements for Protection Visa 866.

The reverse is also true, and it is important. A protection visa is not a pathway for a person whose only concern is their health. The applicant must still be a refugee or meet the complementary protection criterion under section 36 of the Migration Act 1958. A person who is unwell but not owed protection will be refused, whatever the health requirements for Protection Visa 866 say, and section 48A will then generally prevent a further protection visa application while they remain in Australia.

What the Examinations Under the Health Requirements for Protection Visa 866 Involve

The examinations under the health requirements for Protection Visa 866 are arranged after lodgement, when the Department of Home Affairs issues a health identifier known as a HAP ID. The Department states that the examinations are conducted by Bupa Medical Visa Services.

For an applicant with a known condition, the examination is an opportunity rather than a risk. The panel physician reviews the applicant's medical history and conducts a physical examination. Most applicants aged 11 and over also have a chest x-ray to screen for tuberculosis, and further tests may be requested depending on age and history. Bringing a letter from the treating doctor, a list of current medication and recent test results allows the medical officer to understand the condition without ordering unnecessary further tests.

An applicant who has undergone Australian visa health examinations before should tell the Department. Form 866 asks for details of any earlier health examination, including the earlier HAP ID. Earlier results may assist, although the Department may still ask for new examinations. Whatever the Department asks for under the health requirements for Protection Visa 866 should be completed promptly, because missed examinations are a far more common cause of refusal than any medical condition.

When Health Forms Part of a Refugee Claim

Health can form part of a refugee claim where the applicant would be denied treatment, or harmed, because of a Convention reason. The health requirements for Protection Visa 866 are a separate criterion from this question. Meeting them says nothing about whether the claim will succeed, and a claim involving health must satisfy the refugee test in the ordinary way.

Under section 5H of the Migration Act 1958, a refugee has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Section 5J(4) requires the persecution to involve serious harm and systematic and discriminatory conduct. Section 5J(5) gives examples of serious harm. One of them is denial of access to basic services, where the denial threatens the person's capacity to subsist.

Three kinds of health-related claim can engage the refugee test, and each is quite separate from the health requirements for Protection Visa 866.

• Discriminatory denial of treatment. A person who would be refused treatment because of their ethnicity, religion or political opinion, where the refusal threatens their capacity to subsist, may face persecution. A general shortage of medicines, affecting everyone, is not persecution.
• Targeting because of a condition. In some countries, people with a particular illness or disability are abused, confined or excluded because of the condition. People with that condition may, depending on the evidence, form a particular social group under section 5L. Our article on intellectual disability and mental health as a particular social group discusses one Tribunal decision on this question.
• Health status linked to another characteristic. HIV status is sometimes treated by authorities or communities as evidence of sexual orientation, and may form part of a claim based on sexual orientation. Our page on the LGBTI protection visa and our guide to LGBTI protection visas in Australia explain how those claims are assessed.

Each of these claims depends on country information and on the applicant's own circumstances. A claim that the home country cannot afford treatment, without more, will usually fail under the refugee test.

Health and Complementary Protection

Complementary protection rarely succeeds on health grounds alone, even where the applicant easily meets the health requirements for Protection Visa 866, because the forms of significant harm it covers require an intention to cause the harm. Under section 36(2)(aa) of the Migration Act 1958, protection is owed where there is a real risk of significant harm as a necessary and foreseeable consequence of removal. Significant harm is defined in section 36(2A) and includes torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.

The High Court has held that those definitions require an intention to inflict the pain, suffering or humiliation concerned. A health system that cannot provide adequate treatment does not usually intend the harm that results. The deterioration of an applicant's health after return, however serious, is therefore not usually significant harm in the statutory sense. Section 36(2B) also excludes a risk faced by the population of the country generally rather than by the applicant personally.

There are narrower situations in which health and complementary protection can intersect. They include deliberate denial of treatment to a person in detention, forced or abusive treatment of people with mental illness, and targeted ill-treatment of a person because of their condition. These claims depend heavily on specific evidence. Our page on complementary protection explains the test in detail.

Medical Evidence in a Subclass 866 Application

Medical evidence can serve two different purposes in a Subclass 866 application, and it should be prepared with both in mind. The first is to satisfy the health requirements for Protection Visa 866, by allowing the Department's medical officers to assess a known condition quickly. The second is to support the protection claim or explain how the applicant gives evidence.

Useful medical evidence can include:

• a letter from a treating doctor stating the diagnosis, treatment and prognosis;
• a report from a psychologist or psychiatrist on trauma, depression or another mental health condition;
• records of injuries consistent with harm the applicant says they suffered;
• hospital records from the home country, with English translations; and
• country information on the treatment of people with the condition in the home country.

A report prepared for the protection claim should address the questions the decision maker must answer, not the health requirements for Protection Visa 866. A generic letter confirming a diagnosis rarely helps. Our guide to evidence in a protection visa application explains what kinds of evidence carry weight, and our protection visa documents checklist lists the records worth gathering.

Country Information on Health Care and Stigma

Where health is relevant to a protection claim, country information is usually the evidence that decides it. The decision maker will consult reports on the home country, including those prepared by the Department of Foreign Affairs and Trade, to understand how people with the applicant's condition are treated. Those reports often address access to health care, the treatment of people with mental illness or disability, and attitudes to conditions such as HIV.

The applicant's task is to show how that information applies to them personally. A report that describes stigma in general terms does not, by itself, establish a real chance of persecution. The claim is stronger where the applicant can show that people with their condition, and in their circumstances, have been targeted, excluded or harmed, and that the authorities do not provide effective protection. The claim is weaker where the country information shows that the condition is treated in public hospitals, or that the harm feared is limited to a lack of resources.

Applicants should also expect the decision maker to consider whether they could relocate within the home country to an area where treatment or safety is available. That question applies to health-related claims as it does to any other claim. None of this analysis forms part of the health requirements for Protection Visa 866. It is the substance of the claim, and it should be prepared with the same care as any other protection claim.

How Health Affects the Interview and Credibility

A medical condition can affect how an applicant gives evidence, and a decision maker who knows about it is better placed to assess the account fairly. Trauma, torture, depression and other conditions can affect memory, concentration and the ability to give a clear and consistent account. Inconsistency is one of the most common reasons protection claims are refused.

Where a condition affects the applicant's evidence, a report from a treating practitioner should be put before the decision maker before the interview. The report should explain the condition, how it may affect recall or presentation, and any adjustments that would help, such as breaks. It should be lodged in ImmiAccount in good time, not produced for the first time after a refusal. This step is not part of the health requirements for Protection Visa 866, but for some applicants it is as important as the claim itself.

Our page on the protection visa interview and our guide on preparing for the protection visa interview explain how the interview is conducted. Our guide to the protection visa statement of claims explains how the written account is prepared.

Health Requirements for Protection Visa 866 and Family Members

Every family member included in a Subclass 866 application must meet the health requirements for Protection Visa 866, whatever their own health. A family member with a serious condition is in the same position as a primary applicant with that condition. The condition does not itself prevent grant, but the examinations must be completed.

A family member's condition can also matter to the protection claim. For example, a child with a disability may face particular harm in the home country, or a parent may be unable to care for a seriously ill child safely there. Where a family member's health is relevant to the family's claims, the evidence should be gathered and presented with the application, not left for the interview.

Health Requirements for Protection Visa 866 While the Application Is Pending

An applicant's health can change while a Subclass 866 application is waiting for a decision, and the health requirements for Protection Visa 866 continue to apply until the visa is granted. A new diagnosis does not of itself put the application at risk. A missed appointment, a failure to follow a health undertaking, or a failure to tell the Department about a hospital admission that prevents attendance can.

Three practical points apply. First, an applicant receiving treatment in Australia should keep records, because they may later support the claim or explain the applicant's evidence. Second, an applicant should not travel overseas for treatment while the application is pending. Most bridging visas do not allow travel, and clause 866.411 requires the applicant to be in Australia when the visa is granted. Third, any change that affects the applicant's ability to attend an interview or further examination should be notified in writing, with medical evidence, before the relevant date. Managing the health requirements for Protection Visa 866 in this way keeps the focus of the decision where it belongs, on the protection claim.

If a Protection Claim Based on Health Does Not Succeed

Where the Department refuses a Subclass 866 application, the applicant can usually apply to the Administrative Review Tribunal for review within a time limit that is short and strictly applied. The Tribunal considers the case afresh, and it can take new medical evidence into account. A review is often the stage at which medical evidence about trauma or credibility is presented properly for the first time, although it is always better presented at the start.

If the Tribunal affirms the refusal, the Minister has personal powers in limited circumstances to intervene in the public interest after a Tribunal decision. Those powers are non-compellable, and serious health circumstances are among the matters that may be put to the Minister. They are not a substitute for a well-prepared application. Our pages on protection visa refusals and on the protection visa ART hearing explain the review process.

Practical Steps for Applicants With a Medical Condition

An applicant with a medical condition can manage the health requirements for Protection Visa 866 with a small number of practical steps.

• Disclose the condition. There is no advantage in concealing it, and non-disclosure can damage credibility.
• Gather medical records early. Bring them to the examination and keep copies for the application.
• Attend every examination and further test. A missed examination is a far greater risk than the condition itself.
• Comply with any health undertaking. Attend follow-up appointments as required.
• Consider whether the condition is relevant to the claim. If it is, obtain evidence that addresses the legal test.
• Tell the decision maker about any effect on evidence. Lodge a practitioner's report before the interview.
• Keep the Department informed. Notify any change that affects attendance, such as hospital admission.

How My Migration Lawyers Acts for Applicants With Serious Health Conditions

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases, including applicants with serious illness, disability, trauma and mental health conditions. The firm manages the health requirements for Protection Visa 866 as part of the whole application, and it considers from the start whether a condition is relevant to the protection claim or to the way the applicant gives evidence.

• Advice on the health criteria. We explain what the Subclass 866 health criteria require and why a medical condition does not of itself prevent grant.
• Claims assessment. We assess whether the applicant's health, or a family member's health, is relevant to the refugee or complementary protection test, and research the country information that applies.
• Medical evidence. We advise on the reports that are needed and the questions they should address, and we ensure they are lodged before the interview.
• The applicant's own account. The statement of claims is the applicant's own evidence. The applicant reviews it, corrects it and approves it, and the applicant decides which claims are advanced.
• Review and further options. If an application is refused, we act on the Tribunal review and advise on any further options.

The practice is led by Principal Lawyer Weiwei Zhang, who acts in protection visa matters for clients across Australia. Consultations are held by video. Our protection visa lawyers page explains how the firm acts in these matters.

An illness should not stop a person who is owed protection from applying. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.