Partner Visa With a Child With a Disability

A partner visa child with disability case arises when one of the applicant's children, or one of the Australian partner's family unit members, has a disability or a long-term medical condition. The short answer is that a disability does not stop a partner visa. The child must still be assessed against the health requirement, and a partner visa child with disability matter turns on whether the child meets public interest criterion (PIC) 4007 or, if not, whether the Department will exercise a health waiver.

This is the question most families ask first, and it deserves a direct answer. The partner visa health requirement is not a test of disability. It is a test of predicted cost and access to scarce services. Many children with a disability meet it. Some do not, and in those cases the visa can still be granted if a waiver is exercised. What matters is understanding how the assessment works before the medicals are done, and preparing the evidence that a decision maker needs.

This article explains the law that applies to a partner visa child with disability case: which health criterion applies to each partner visa subclass, the "one fails, all fail" rule, children who are not migrating, how the Medical Officer of the Commonwealth assesses cost, how the health waiver works, what a waiver submission needs to address, and what the Administrative Review Tribunal has done in reported partner visa health cases. Our partner visa lawyer guide explains how legal help fits into the process. If you are new to the partner visa programme, start with our complete guide to partner visas in Australia, which explains every subclass and how they fit together.

Can you get a partner visa if your child has a disability?

Yes. A partner visa can be granted when the applicant's child has a disability, provided the child meets the health requirement or the health requirement is waived. There is no rule that excludes a family because a child has autism, an intellectual disability, cerebral palsy, a hearing or vision impairment, a genetic condition or developmental delay.

The legal question is narrower than many families expect. Under PIC 4007, the decision maker asks whether a Medical Officer of the Commonwealth (MOC) has formed the opinion that the child has a disease or condition that is likely to require health care or community services, and that the provision of those services would be likely to result in a significant cost to the Australian community or prejudice the access of Australian citizens and permanent residents to health care or community services. A child with a mild condition and modest support needs may meet the requirement outright. A child with high support needs may not meet it, and the family then moves to the waiver.

This is why a partner visa child with disability assessment is never decided by the diagnosis alone. Two children with the same diagnosis can receive different outcomes because their functional needs, their predicted services and the evidence about their care are different. The important point for families is that the outcome is not fixed at the moment of diagnosis. It depends on the evidence placed before the Medical Officer and, later, before the decision maker.

The relationship itself is assessed separately. The couple must still prove a genuine and continuing relationship, the Australian partner must still be an eligible sponsor who is not affected by the partner visa sponsorship limitations, and every other criterion must still be met. De facto couples must also meet the rules explained in our guide to the de facto partner visa and the 12-month rule. Our guide to partner visa evidence and how to prove your relationship is genuine covers that part of the application. A partner visa child with disability case adds a health layer on top of those requirements. It does not replace them.

Which health requirement applies to a partner visa child with disability?

PIC 4007 is the health criterion for every partner visa subclass. The Department's procedural instructions confirm that the primary applicant must satisfy PIC 4007 for the Subclass 820 onshore partner visa (clause 820.223), the Subclass 801 permanent visa (subclause 801.223(1)), the Subclass 309 offshore partner visa and the Subclass 100 permanent visa, and the Subclass 300 Prospective Marriage visa (clause 300.223).

The difference between PIC 4005 and PIC 4007 matters. PIC 4005 applies to many other visas and cannot be waived. PIC 4007 contains the same core health test, but it adds a waiver power in subclause 4007(2). Because partner visas use PIC 4007, a partner visa child with disability matter is never automatically over when the child does not meet the health test. The waiver is the second stage of the assessment, and in many family cases it is the stage that decides the outcome.

PIC 4007 has several parts. In broad terms, the applicant must undergo the medical assessment the Minister requires, must be free from tuberculosis and from conditions that are a threat to public health or a danger to the community, and must not have a disease or condition that a Medical Officer of the Commonwealth considers would be likely to result in significant cost or prejudice to access. The cost and access limb, paragraph 4007(1)(c), is the limb that matters in almost every partner visa child with disability case. It is also the limb that can be waived.

For a full explanation of the onshore pathway, read our guide to the Subclass 820 visa explained. For an overview of every criterion a couple must meet, including health, character and the public interest criteria, read our guide to Subclass 820 partner visa requirements, cost and processing and the 820 visa requirements and how to apply.

What is the "one fails, all fail" rule for partner visas?

The "one fails, all fail" rule means that the primary applicant cannot be granted a partner visa unless every member of the family unit meets the health criterion. If one child does not meet PIC 4007 and no waiver is exercised, the visa is refused for the whole family, including the partner who is the primary applicant.

The rule is written into the visa criteria themselves. For the Subclass 820, subclause 820.224(1) requires each member of the family unit who is also an applicant to satisfy PIC 4007. Subclause 820.224(1A) extends the health requirement to members of the family unit who are not applicants, unless the decision maker is satisfied that it would be unreasonable to require the person to undergo assessment. The same structure appears for the Subclass 309 in subclauses 309.228(1) and (2), for the Subclass 300 in subclauses 300.226(1) and (2), and for the permanent Subclass 801 and Subclass 100 in clauses 801.224 and 100.224.

The Department's own procedural instructions describe these provisions under the heading "One fails, all fail". That label is accurate. In a partner visa child with disability case, the health assessment of the child is effectively a criterion for the parent. This is the single most important legal point in this area, and it is the one families most often misunderstand.

Children included in the application

A child who is included as a secondary applicant must undergo the immigration medical examinations and must satisfy PIC 4007 personally. If the Medical Officer forms an adverse opinion about the child, the child does not meet the criterion, and the primary applicant does not meet the "one fails, all fail" criterion either. Both outcomes then depend on the waiver.

In a partner visa child with disability case, including a child in the application is usually the right step when the child is a dependent child who will live with the couple in Australia. Our partner visa document checklist explains the documents usually needed for children included in a partner visa application, including birth certificates, custody evidence and consent from any other parent.

Children who are not migrating

A child who is a member of the applicant's family unit but who is not coming to Australia must still satisfy PIC 4007, unless the decision maker is satisfied that it would be unreasonable to require that child to undergo assessment. This is the part of the rule that surprises parents most. A child who lives with the other parent overseas, and who will never apply for an Australian visa, can still decide the outcome of a partner visa child with disability case.

The Tribunal has dealt with this situation directly. In VIDAL (Migration) [2019] AATA 5658, a Subclass 309 case, the reported issue was that the health criteria applied to non-migrating family members, and that a non-migrating child with severe functional impairment did not satisfy the criteria, with the waiver in issue. In Burke (Migration) [2024] AATA 130, another Subclass 309 case, the reported issues included the applicant's daughter's mild intellectual impairment, the discretion to waive the requirement, and the finding that the daughter was unlikely ever to come to Australia. In both matters the Tribunal remitted the application to the Department.

Whether a non-migrating child is a "member of the family unit" at all depends on the definitions in the Migration Regulations, including the definition of dependent child. That question should be answered before the medicals are arranged, because it decides whether the child must be examined.

Who must have a health examination in a partner visa child with disability case?

Every applicant and every member of the family unit who must satisfy PIC 4007 is usually asked to complete immigration medical examinations through the Department's panel physicians. In a partner visa child with disability case, that includes the child with the disability, whether or not the child is migrating, unless the Department accepts that requiring the assessment would be unreasonable.

The examinations are arranged through the Department's eMedical system after the application is lodged, or in some cases before. The panel physician records the child's history and findings, and any condition that may be significant is referred to a Medical Officer of the Commonwealth. The Medical Officer may ask for further reports, for example a specialist paediatric report, a developmental assessment or a report on the child's functional capacity. These requests are an opportunity, not only a burden. A clear specialist report that describes the child's actual needs is often the most important document in the file.

In any partner visa child with disability application, families should not hide or minimise a diagnosis. The medical forms ask direct questions, and the Department compares the answers with the medical records. Inaccurate answers create a separate and more serious problem under PIC 4020, the integrity criterion. Our guide to the Form 80 personal particulars form explains why consistency across every document matters, and our guide to creating an ImmiAccount explains where the health and application records sit online.

When the child is in the custody of the other parent

Where a non-migrating child lives with a former partner overseas, the other parent may refuse to take the child to a panel physician. That fact can be relevant to whether it is unreasonable to require the assessment. The decision maker considers the circumstances, and the evidence of the refusal, the custody arrangements and the attempts made to arrange the examination should be placed on the file. A partner visa child with disability matter involving a non-migrating child often depends on this evidence.

How does the Medical Officer of the Commonwealth assess a child with a disability?

The Medical Officer of the Commonwealth assesses whether the child's condition is likely to require health care or community services and whether the cost of those services, or their effect on access to scarce services, reaches the level set by PIC 4007. The Medical Officer does not decide the visa. The Medical Officer gives an opinion, and the decision maker must take that opinion to be correct for the purposes of the health criterion.

This is why the content of the opinion matters so much in a partner visa child with disability assessment. The opinion records the condition, the services the Medical Officer considers the child is likely to need, the period over which the cost is assessed, and whether the estimated cost is significant. Each of those steps depends on the medical evidence that was available when the opinion was formed.

Significant cost

Significant cost is measured against a significant cost threshold set by the Department. The Department states on its website that the threshold was last updated on 1 July 2024 and that it is reviewed every two years. The figure changes over time, and families should check the Department's current page rather than rely on an older figure. The threshold is not a number to aim for in an application. It is the benchmark the Medical Officer uses when estimating cost.

The Department lists the categories of cost that count. They include hospital care, primary health care, medical services and pharmaceuticals, and welfare spending including disability services funded by the National Disability Insurance Scheme, early intervention support for children with disability, specialised education support and cash welfare payments. For a child with a disability, the services most often counted are disability support, therapy, special education support and carer-related payments.

Prejudice to access

Prejudice to access is a separate limb. It applies where the condition is likely to require services that are in short supply, so that providing them to the applicant would limit the access of Australian citizens and permanent residents. The Department currently identifies organ transplants and dialysis as services in this category. In most partner visa child with disability cases the issue is cost, not prejudice to access.

The period of the assessment

For permanent and provisional visas, the Department states that estimated health costs are generally assessed over five years. Where the condition is permanent or ongoing and has a reasonably predictable course, the Medical Officer assesses costs over the person's remaining life expectancy, up to a maximum of 10 years. Because partner visas lead to permanent residence, a child with a lifelong disability is usually assessed over the longer period. This is one reason a modest annual cost can become significant when it is projected forward.

The test looks at the condition, not only the family's plans

PIC 4007(1)(c) is assessed regardless of whether the health care or community services will actually be used by the applicant. A family that intends to pay privately, or that says the child will not access the National Disability Insurance Scheme, will not meet the health criterion on that basis alone. Those facts are not irrelevant. They belong in the waiver stage, where the decision maker considers whether the cost to the community would be undue. Understanding this sequence is the key to a well-run partner visa child with disability application.

Is a disability a reason to refuse a partner visa?

No. A disability is not, by itself, a reason to refuse a partner visa. A partner visa is refused on health grounds only when a family member does not meet PIC 4007 and the decision maker does not exercise the health waiver. The diagnosis is the starting point of the assessment, not the end of it.

This distinction matters for how families approach a partner visa child with disability case. A family that assumes the visa is impossible may never apply, or may leave a child out of the application in a way that later causes a separate integrity problem. A family that assumes the health check is a formality may lodge without preparing for the waiver, and then face a short deadline to respond to an adverse opinion. Neither approach serves the child or the couple.

In a partner visa child with disability case, the better approach is to treat the health requirement as one of the criteria that will be tested, to gather the medical evidence early, and to prepare the waiver material in parallel with the relationship evidence. Our article on why partner visas get refused shows how many refusals trace back to a criterion that was not prepared for before lodgement, and our list of the most common reasons Subclass 820 partner visas are refused includes health as one of them.

What happens if a child does not meet the health requirement?

If the Medical Officer of the Commonwealth forms the opinion that the child does not meet PIC 4007(1)(c), the Department will usually write to the applicant, explain the adverse health information, and invite the family to comment and to provide information relevant to the health waiver. The family then has a limited time to respond before the decision is made.

This letter is the most important moment in a partner visa child with disability case. It is often the first time the family sees the Medical Officer's reasoning. It is also the main opportunity to put the waiver case before the primary decision maker. A response that only says the family loves the child and will pay for everything is rarely enough. A response that addresses the actual services identified by the Medical Officer, explains how the family will meet the child's needs, and sets out the compelling circumstances of the Australian family is far more useful.

In a partner visa child with disability matter, the procedure is similar to the procedure for other adverse information. Our guides to responding to a section 57 natural justice letter for a partner visa and responding to a section 56 request for more information explain how these invitations work, why the deadline matters, and why a request for more time should be made in writing before the deadline expires.

Do not withdraw the child without advice

Some families consider removing the child from the application once they learn of the adverse opinion. That step rarely solves the problem. A child who is a member of the family unit must still satisfy PIC 4007 even if the child is not an applicant, unless it would be unreasonable to require assessment. Removing a child from the application can also raise questions about earlier answers in the application. In a partner visa child with disability matter, any change to who is included should only be made after legal advice. A Form 1022 notification of a change in circumstances may be required where the family situation genuinely changes.

How does the partner visa health waiver work?

The partner visa health waiver is the power in PIC 4007(2) that allows the Minister, or a delegate, to waive the cost and access limb in paragraph 4007(1)(c). A waiver can be exercised only if the applicant satisfies every other criterion for the visa, and the decision maker is satisfied that granting the visa would be unlikely to result in undue cost to the Australian community, or undue prejudice to the access of Australian citizens and permanent residents to health care or community services.

Three features of the waiver shape every partner visa child with disability case, and each one should be understood before the medicals are done.

First, the waiver is a second stage. The decision maker cannot waive the health requirement for an applicant who does not meet the relationship criteria, the sponsorship criteria, character or any other criterion. If the relationship evidence is weak, the waiver is never reached. A partner visa child with disability application with a strong health case and a weak relationship case will still fail. This is why the relationship case and the health case must both be strong.

Second, the word is "undue". The test in 4007(1)(c) asks whether the cost is significant. The waiver asks whether the cost, taking all the circumstances into account, would be undue. A cost can be significant and still not be undue, for example where the family can show that some of the cost will be met privately, where the child's care is mainly provided by family, or where compelling circumstances make the remaining cost acceptable.

Third, the waiver is discretionary. The decision maker weighs the circumstances. There is no checklist that guarantees a waiver, and no fixed amount that is acceptable. The decision depends on the quality of the evidence and the persuasiveness of the submission.

Who decides the waiver in a partner visa child with disability case

At the primary stage, the waiver is decided by a delegate of the Minister in the Department. Where the Department refuses, the decision can often be reviewed, and our general visa refusals service explains how. At review, the Administrative Review Tribunal stands in the shoes of the decision maker and can exercise the waiver itself. Our guide to ART review after a visa refusal explains how the Tribunal reviews the decision afresh on the evidence at the time it decides.

What should a partner visa child with disability waiver submission address?

A health waiver submission should address the specific services identified in the Medical Officer's opinion, explain how the cost of those services to the Australian community will be reduced or mitigated, and set out the compelling and compassionate circumstances that make the remaining cost not undue. It should be supported by documents, not assertions.

In a partner visa child with disability case, a well-prepared waiver submission usually deals with the following matters.

• The Medical Officer's findings. Which services were identified, over what period, and on what evidence. Where the opinion relies on general assumptions about a diagnosis, updated specialist evidence about this child's actual needs may be relevant.
• Mitigation of cost. Private health insurance, the family's capacity to fund therapy and support, a written commitment not to seek certain services where that is realistic, and evidence of family members who provide care. Statements of intention carry more weight when they are backed by financial evidence.
• Employment and contribution. The applicant's skills, qualifications and work history, the Australian partner's employment, and the likely contribution of the family to Australia. Contribution does not cancel cost, but it is part of the overall weighing.
• The Australian family. The Australian partner's citizenship or permanent residence, any Australian citizen children, the length of the relationship, and the effect of a refusal on Australian citizens. These are often the strongest compelling circumstances.
• The best interests of children. The interests of the child with the disability and of any other children, including the effect of separating a child from a parent, or a parent from a partner.
• The child's situation if the visa is refused. The availability of care and services in the home country, the support network there, and the consequences of family separation.

The submission must present the family's real circumstances honestly. A waiver decision is made on evidence, and inconsistent or exaggerated claims damage credibility. The relationship statement and the waiver submission should tell the same story, and Form 888 supporting statements from Australian citizens who know the family can help show both the genuine relationship and the care the family provides. Our article on Form 888 example answers and common mistakes explains what makes those statements useful.

Evidence that commonly supports a waiver

The documents that usually support a waiver in a partner visa child with disability matter, as with the general partner visa document checklist, include current specialist reports, therapy plans, school or early learning reports, evidence of private health insurance, payslips and tax records for both partners, evidence of savings and assets, statements from family members who provide care, evidence of the Australian partner's status and the length of the relationship, and evidence about any Australian citizen children of the relationship. The evidence should be current. A report that is several years old may not reflect the child's present needs.

Can the Medical Officer's opinion be challenged?

The Medical Officer's opinion cannot be overruled by the decision maker on the question of whether the child meets PIC 4007(1)(c), because the Migration Regulations require the decision maker to take the opinion as correct. However, an opinion can be updated when new medical evidence is provided, a further opinion can be sought, and an opinion that was not properly formed, or that is out of date, may not be one the decision maker can rely on.

This is a technical area of law, and the reported partner visa health cases show how often it matters in a partner visa child with disability case. Where a family is unsure whether an opinion was properly formed, an immigration lawyer second opinion can be useful before the response is lodged. In 1923768 (Migration) [2020] AATA 3910, a Subclass 309 case, the reported issues were that the applicant had failed to meet the health criteria because the requirements in PIC 4007 were not met, that a further MOC opinion was provided, and that the visa applicant satisfied the health criteria. In Hope (Migration) [2022] AATA 1236, also a Subclass 309 case, the Tribunal's reported issues were a failure to meet PIC 4007, an updated MOC opinion, and the health requirements being met. In Kelly (Migration) [2021] AATA 480, the reported issues included significant cost to the Australian community, Departmental policy changes and a further MOC opinion obtained.

These decisions do not mean that every adverse opinion will change. They show that an adverse health opinion in a partner visa child with disability case is not necessarily final, and that new and better evidence about the child's actual needs can lead to a different opinion. Where a new opinion is favourable, the waiver may not be needed at all.

Errors to look for in an opinion

When a partner visa child with disability opinion is reviewed, the questions usually asked are whether the Medical Officer had the current specialist evidence, whether the services listed reflect this child rather than a generic profile of the diagnosis, whether the correct assessment period was used, and whether the opinion addresses the correct criterion. These are legal and medical questions together, and they are best answered with the child's treating specialists. Our guide to partner visa lawyer versus doing it yourself explains why complex criteria like these are where legal help adds the most value.

Can a child aged over 18 with a disability be included in a partner visa?

Yes, in some cases. A child aged 18 or over can be included in a partner visa application as a dependent child if the legal definition is met. Under the Migration Regulations, a child who has turned 23 can still be a dependent child if the child is incapacitated for work due to the total or partial loss of bodily or mental functions and is dependent on the parent. A child aged 18 to 22 can be a dependent child if the child is dependent on the parent.

This rule is important in a partner visa child with disability case involving an adult child, and it is often overlooked when families first book an immigration lawyer consultation. An adult son or daughter with a significant disability who relies on the parent may be eligible to be included, but the inclusion brings the health requirement with it. The family then needs to address both whether the adult child is a dependent child and whether the adult child meets PIC 4007 or should be considered for a waiver.

The Tribunal has remitted partner visa cases involving dependency. In Hassani (Migration) [2021] AATA 2823, a Subclass 309 case, the reported issues were that the visa applicant met the definition of dependent child in regulation 1.03, that he was dependent on his father, and that health conditions were in issue. In Koblitz (Migration) [2021] AATA 476, the reported issues were member of the family unit, dependent child, over 18 years of age, and a mental health condition. Dependency must be proven with evidence of financial and practical reliance on the parent. In a partner visa child with disability case involving an adult child, that evidence usually includes records of financial support, living arrangements and the care the parent provides.

Adult children who are not migrating

An adult child who meets the definition of dependent child is also a member of the family unit. If that adult child is not migrating, the "one fails, all fail" rule can still apply unless it would be unreasonable to require assessment. In Evangelio (Migration) [2022] AATA 1109, a Subclass 820 case, the reported issues were that the health criteria were not met, that the medical opinion was validly made, that the applicant's non-migrating sons did not satisfy PIC 4007(1)(c), and the three sons' health conditions. The Tribunal remitted the matter. A partner visa child with disability case involving adult children needs early advice on whether those children are members of the family unit at all.

What has the Tribunal decided in partner visa health cases involving disability?

The Administrative Review Tribunal, and the Administrative Appeals Tribunal before it, has remitted a number of partner visa cases in which health criteria were in issue, including cases involving cognitive impairment, developmental delay and non-migrating children with disability. The reported issues in those decisions show the points on which a partner visa child with disability case is most often won or lost.

The cases below are drawn from reported decisions in which the Tribunal remitted the matter to the Department or found the criterion met. They are described only by the issues reported. Each case turns on its own facts, and none of them predicts the outcome of another case.

• 2005509 (Migration) [2024] AATA 759. A Subclass 309 case. The reported issues were the health criteria, mild functional and cognitive impairment, mild developmental delay, and the Medical Officer of the Commonwealth opinion. The reported issues point to the content of the Medical Officer's opinion and the degree of functional impairment it describes.
• 1923768 (Migration) [2020] AATA 3910. A Subclass 309 case. The reported issues were that the health criteria and the requirements in PIC 4007 were not met, that a further MOC opinion was provided, and that the visa applicant then satisfied the health criteria.
• VIDAL (Migration) [2019] AATA 5658. A Subclass 309 case in which the reported issues were that the health criteria also apply to non-migrating family members, that a non-migrating child with severe functional impairment did not satisfy the criteria, and the waiver.
• Burke (Migration) [2024] AATA 130. A Subclass 309 case in which the reported issues were the health requirements, the applicant's daughter's mild intellectual impairment, the discretion to waive the requirement, and the daughter being unlikely ever to come to Australia.
• 1732568 (Migration) [2018] AATA 5803. A Subclass 309 case in which the reported issues were that the health requirements were not met, the provision of health care, significant cost to the Australian community, and the requirements of PIC 4007 being waived.
• 1724247 (Migration) [2019] AATA 6609. A Subclass 309 case in which the reported issues were a failure to meet PIC 4007, a valid MOC opinion, and the existence of compelling and compassionate circumstances.
• 1718024 (Migration) [2021] AATA 2553. A Subclass 820 case in which the reported issues were that the health criteria were not met, that the medical opinion was validly made, the possible mitigation of significant costs, and that the requirements of PIC 4007(1)(c) be waived.

Two lessons stand out. First, where an opinion was validly made and the child or family member did not meet the health test, the case moved to the waiver, and the waiver turned on compelling circumstances and mitigation of cost. Second, where the medical evidence was updated, a further opinion sometimes resolved the health issue without a waiver. A partner visa child with disability case should be prepared with both possibilities in mind.

If a partner visa has already been refused on health grounds and the review deadline has not passed, our guide to partner visa refusal appeal options explains the next steps. The deadline to apply to the Tribunal is short and strictly applied, so families should act as soon as the refusal arrives. Our partner visa refusals service and our visa appeal lawyer guide explain how a review is prepared.

When is it unreasonable to require a non-migrating child to be assessed?

It is unreasonable to require a non-migrating child to be assessed when the decision maker is satisfied, on the facts, that requiring the child to undergo the health assessment would not be reasonable. The criteria do not list the circumstances. The question is decided case by case, and the evidence placed before the decision maker is what matters.

In a partner visa child with disability case involving a child who lives overseas, the facts that are often relevant include whether the applicant has legal custody or access, whether the other parent consents to the examination, whether the child can travel to a panel physician, whether the child has any realistic prospect of coming to Australia, and whether the applicant has made genuine attempts to arrange the examination. Evidence of those attempts, such as correspondence with the other parent, court orders, and records of contact with the panel clinic, should be kept from the start.

This is separate from the waiver. If the decision maker accepts that assessment would be unreasonable, the non-migrating child is not assessed under PIC 4007, and the waiver is not needed for that child. If the child is assessed and does not meet the criterion, the family then asks for the waiver. The Burke decision shows that the fact that a child is unlikely ever to come to Australia can be relevant to the waiver. A partner visa child with disability matter may need to argue both points in the alternative.

Is there special consideration for a child born in Australia?

Yes. The Department's website now describes a separate assessment for children who were born in Australia and are ordinarily resident in Australia. Where a child under 18 at the time of the visa decision was born in Australia and is ordinarily resident here, the Department may assess the child under the "child born and ordinarily resident in Australia assessment", even if the child's condition would otherwise mean the health requirement was not met.

The Department states that no separate application is needed, that the visa processing officer will consider the assessment automatically, and that a full standard Australian birth certificate issued by Births, Deaths and Marriages is required. Extracts and commemorative certificates are not accepted. If the child does not meet this assessment, the Department may consider a health waiver where one is available for the visa subclass.

This is relevant to a partner visa child with disability case where a child was born in Australia but is not an Australian citizen, for example a child of the applicant from an earlier relationship who was born while the applicant held a temporary visa. A child born in Australia to an Australian citizen or permanent resident parent is generally an Australian citizen and does not need a visa at all. The child's citizenship should be checked first, because it changes the analysis completely.

Does the health assessment change between the onshore and offshore partner visas?

No. The same PIC 4007 test, the same "one fails, all fail" rule and the same waiver apply to the onshore Subclass 820 and the offshore Subclass 309. What differs is the practical setting. An onshore family is usually in Australia on a bridging visa while the application is processed, and an offshore family usually waits outside Australia.

For an onshore partner visa child with disability case, the family often already has Australian specialist reports, school records and therapy history. That evidence can be very useful for the Medical Officer and for the waiver. The family will usually hold a bridging visa while the application is processed. Our guides to Bridging Visa A, work rights while waiting for a Subclass 820 and bridging visas in Australia explain those arrangements, and our guide to Bridging Visa B covers travel. Families applying onshore without a substantive visa must also consider the Schedule 3 criteria and whether a Schedule 3 waiver is needed.

For an offshore partner visa child with disability case, the specialist evidence usually comes from the home country. Reports may need translation, and the family should make sure that the reports describe functional needs in terms a Medical Officer in Australia can apply. Our offshore Subclass 309 service page explains the offshore pathway.

Timing is a related issue. The health assessment and any waiver can add time to processing. Our guides on how long a Subclass 820 partner visa takes and the Subclass 820 onshore timeline explain the general processing picture.

Is the child assessed again at the permanent stage?

Usually not. In a partner visa child with disability case, the Department's procedural instructions state that applicants who received a permanent health clearance for the Subclass 820 visa, or who had a health waiver exercised, are not ordinarily required to undertake further health checks at the Subclass 801 stage. The same approach applies to the Subclass 100 after the Subclass 309.

There are exceptions. Repeat medical examinations may be requested where the decision maker has reason to believe a health condition was not disclosed at the first stage, where there are concerns about fraud, where the Department has information that the applicant's condition has changed, or where the temporary or provisional visa ceased more than 12 months before the permanent assessment began. A child who joins the family after the first stage, for example by birth or adoption, and who did not complete medicals at the first stage, will usually need to complete them at the permanent stage. Our guide to the difference between the Subclass 820 and Subclass 801 explains the two stages.

This is another reason to deal with a partner visa child with disability issue properly at the first stage. A waiver exercised at the temporary stage generally carries the family through to permanent residence, provided the relationship continues and the other criteria are met. If the relationship breaks down during processing, our article on what happens if the relationship ends during a Subclass 820 application explains the options, and our family violence partner visa page explains the family violence provisions.

Common mistakes in a partner visa child with disability application

The most common mistakes in a partner visa child with disability application are leaving the child out of the application without advice, failing to complete medicals for a non-migrating child, providing old or general medical reports, and waiting for an adverse opinion before preparing the waiver. Each of these can be avoided with planning.

• Not declaring the child. Every child must be declared in the application and in the Form 80 where it is required. Failing to declare a child raises a serious integrity issue that is separate from health.
• Assuming the child does not need medicals because the child is not migrating. The "one fails, all fail" rule can apply to non-migrating children unless it would be unreasonable to require assessment.
• Providing a diagnosis without a functional description. A letter that only names the condition invites the Medical Officer to assume the most expensive profile of that condition. A report that describes what the child can do, what supports the child actually uses, and the expected course is far more useful.
• Treating the waiver as an afterthought. The waiver is often decided on the response to the Department's invitation to comment. That response should be ready before the invitation arrives.
• Weak relationship evidence. The waiver cannot be exercised unless every other criterion is met. Our guide to preparing evidence of a genuine relationship and our 820 partner visa evidence checklist cover the relationship side.
• Missing the review deadline. After a refusal, the time to apply to the Tribunal is short and strictly applied.

Couples who have already lodged without advice can still strengthen the application before a decision is made. Our article on hiring an immigration lawyer after lodging your own visa application explains how a lawyer can step in during processing, and Form 956 and 956A explains how a representative is appointed.

How My Migration Lawyers helps with a partner visa child with disability case

My Migration Lawyers acts for couples whose partner visa depends on the health assessment of a child with a disability, and we understand how worrying this situation is for parents. These are complex cases. They combine the relationship criteria, the health criteria, the "one fails, all fail" rule and a discretionary waiver, and they often involve children overseas, former partners and medical evidence from several countries. We act in many partner visa matters of this exact type, and we are capable of handling them from the first assessment through to review if that becomes necessary.

In a partner visa child with disability case, our work usually includes the following.

• An early legal assessment. We identify which children are members of the family unit, whether each child must be assessed, and whether the special consideration for Australian-born children or the unreasonable-to-assess provision may apply.
• Planning the medical evidence. We work with the family to obtain current specialist reports that describe the child's functional needs accurately, so that the Medical Officer has the right evidence before forming an opinion.
• Preparing the waiver case early. We gather the evidence of cost mitigation, family support, employment and the compelling circumstances of the Australian family, so that the response to any adverse opinion is ready on time.
• Responding to the Department. We prepare the written response to the invitation to comment, addressing the specific services in the Medical Officer's opinion and the legal test for a waiver under PIC 4007(2).
• Keeping the relationship case strong. We prepare the relationship evidence, the relationship statement in the client's own words, and the Form 888 supporting statements, because the waiver cannot be reached unless every other criterion is met.
• Review if needed. If a partner visa is refused on health grounds, we advise on review at the Administrative Review Tribunal and, where there is a legal error, on judicial review.

Our Principal Lawyer, Weiwei Zhang, oversees our partner visa practice. You can read more about My Migration Lawyers, our partner visa lawyers service, and our guide to when you need an immigration lawyer for a partner visa. We act for families across Australia, including couples in Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart, the Gold Coast and Parramatta, and families overseas applying for the Subclass 309.

If your partner visa depends on the health assessment of a child with a disability, the earlier the case is planned, the more options remain open. A partner visa child with disability matter is best assessed before the medicals are done, and certainly before any response to the Department is due. Book a consultation with My Migration Lawyers to discuss your family's situation, or call 1300 040 300.