Protection Visa 866 Health Requirements

What Are the Protection Visa 866 Health Requirements?

The Protection Visa 866 health requirements oblige each applicant to undergo the medical examinations the Department of Home Affairs requires, and they do not require the applicant to be free of any disease or condition. The requirements are set out in clauses 866.223 to 866.224B of Schedule 2 to the Migration Regulations 1994. The Department states on its Subclass 866 page that applicants must undergo health examinations, and that these examinations protect the applicant's health and the health of the Australian community.

This is the point on which most general information about the protection visa 866 health requirements goes wrong. Many visas require the applicant to meet the health requirement in public interest criterion 4005 or 4007. Those criteria can lead to refusal where a condition is likely to result in significant health care costs or to prejudice Australians' access to health care. The Subclass 866 visa does not include those criteria.

The practical consequence is significant. A person who is owed protection is not refused a Subclass 866 visa merely because they have a serious or costly medical condition. What the law requires is that the applicant undergoes the examinations, and complies with any related requirements the Department's medical officers impose.

For an overview of the visa, see our Subclass 866 Protection visa page and our complete guide to the Subclass 866 Protection visa.

Why the General Health Requirement Does Not Apply to the Subclass 866 Visa

The general health requirement does not apply because the criteria for the Subclass 866 visa do not prescribe it. Clause 866.225 requires the applicant to satisfy public interest criteria 4001 and 4003A and, for applicants aged 18 or over at the time of application, public interest criterion 4019. Public interest criteria 4005 and 4007 are not on that list.

The contrast with other visas makes the point clear. A permanent partner visa, for example, requires the applicant to satisfy public interest criterion 4007, which contains the health requirement and the possibility of a health waiver. The Subclass 866 visa has its own health criteria instead, and those criteria focus on examination rather than on the cost of treatment.

The design reflects the purpose of the visa. The Subclass 866 visa exists to meet Australia's protection obligations to people who face persecution or significant harm if returned. Refusing protection because a person is unwell would sit uneasily with those obligations. The protection visa 866 health requirements therefore protect public health through screening, while leaving the grant of protection to depend on the protection claim and the other criteria.

This does not mean health is irrelevant. Examinations must still be completed. Some conditions, such as active tuberculosis, can require treatment or follow-up arrangements before the Department is satisfied. The health criteria can also include a requirement to sign an undertaking to attend a state or territory health service where the medical officer considers it necessary.

What the Protection Visa 866 Health Requirements Involve in Practice

In practice, the protection visa 866 health requirements involve a medical examination and, for most applicants, a chest x-ray, together with any further tests the Department's medical officers request. The examinations screen for conditions of public health significance, in particular tuberculosis.

The tests an applicant is asked to complete depend mainly on age and medical history.

• A medical examination. This is a physical examination and a review of the applicant's medical history, conducted by a panel physician.
• A chest x-ray. A chest x-ray is generally required for applicants aged 11 and over, to screen for tuberculosis. The Regulations contain limited exceptions, including for some pregnant applicants who make other arrangements for tuberculosis screening.
• Further tests. Depending on age and history, the Department's health requirements may also include blood tests, such as an HIV test for older applicants, and any additional test the medical officer requests.

The examinations under the protection visa 866 health requirements are recorded in the Department's eMedical system and assessed by the Department's medical officers. An applicant who has undergone Australian visa health examinations before should say so. Form 866 asks whether the applicant has previously undertaken a health examination for an Australian visa and asks for the earlier HAP ID if available.

Protection Visa 866 Health Requirements Compared With Other Visas

The protection visa 866 health requirements are narrower than the health rules for most other Australian visas. A visitor, student, partner or skilled visa applicant is usually assessed against public interest criterion 4005 or 4007. Those criteria ask whether the applicant has a disease or condition that is a threat to public health, or that is likely to result in significant health care and community service costs or to prejudice the access of Australians to health care.

Under those criteria, an applicant with a costly condition can be refused, and some can ask for a health waiver. Neither step is part of the protection visa 866 health requirements. This has practical consequences for applicants who have been refused another visa on health grounds, or who were advised that their health would prevent a permanent visa. That earlier advice may not apply to a protection visa application. The question for a Subclass 866 application is whether the applicant is owed protection and has completed the required examinations, not whether their treatment will be expensive. Our guide to permanent protection visa eligibility sets out the other criteria that must be met.

How the HAP ID and Health Examinations Work

The Department gives the applicant a health identifier, known as a HAP ID, after the Subclass 866 application is lodged, together with information about how to arrange the health examinations. The Department states that it will let the applicant know when the examinations need to be arranged. The examinations are conducted by Bupa Medical Visa Services.

The steps are straightforward, but each one matters for the protection visa 866 health requirements.

• Receive the HAP ID letter. The letter identifies which examinations each applicant must complete. Each family member included in the application usually receives their own requirements.
• Book the appointment. The appointment is booked with the provider using the HAP ID. The applicant should book promptly and keep a record of the booking.
• Attend with identification. The applicant should bring the HAP ID letter, a passport or other photographic identification, any glasses or medication, and any medical records relevant to existing conditions.
• Complete any further tests. If the medical officer asks for more tests or specialist reports, the applicant should complete them as quickly as possible.
• Follow any health undertaking. If the applicant is asked to sign a health undertaking and to attend a state or territory health clinic, the applicant should comply with it.

An applicant who has a known medical condition should bring evidence of diagnosis and treatment to the examination. Complete records allow the medical officer to assess the condition without unnecessary delay. There is no advantage in concealing a condition. The protection visa 866 health requirements do not penalise illness, but inaccurate answers can raise credibility concerns about the application as a whole.

What Happens If the Examinations Are Not Completed

If an applicant does not undergo the required examinations, the applicant cannot satisfy the health criteria in clauses 866.223 to 866.224B, and the Department must refuse the visa under section 65 of the Migration Act 1958. This is the real risk under the protection visa 866 health requirements. It is not the condition. It is the failure to attend.

Refusals on this ground are avoidable, and they are particularly damaging. Section 48A of the Migration Act 1958 generally prevents a further protection visa application after a refusal while the applicant remains in Australia. A strong protection claim can therefore be lost because an appointment was missed, a letter went to an old address, or a family member did not attend.

Common causes of missed examinations include:

• a HAP ID letter sent to an email address the applicant no longer checks;
• a change of address not notified to the Department on Form 1022;
• an assumption that examinations can wait until after the interview;
• a family member who did not understand that their own examinations were required; and
• a request for further tests that was not followed up.

Where there is a genuine reason why an examination cannot be completed, such as a serious illness or a pregnancy-related issue, the Department should be told in writing, with medical evidence, before any deadline passes. Our guide on responding to a section 56 request for more information explains how deadline-based requests are managed.

Pregnancy and the Protection Visa 866 Health Requirements

Pregnancy does not prevent a Subclass 866 application, and it does not prevent the grant of the visa. It does affect the chest x-ray, which is usually deferred or replaced by other tuberculosis screening arrangements during pregnancy. The Regulations contain an exception for a pregnant applicant who has been examined for tuberculosis by a state or territory chest clinic officer and who has signed an undertaking to place herself under the supervision of a health authority, where the Minister is satisfied she should not be required to have the x-ray at that time.

A pregnant applicant should tell the panel physician before any x-ray is taken and should tell the Department in writing, with medical evidence, if the pregnancy affects the timing of the examinations. The Department must also be told of the birth of a child, and the child is taken to be included in the application. These are practical points under the protection visa 866 health requirements that are easily managed if the Department is kept informed.

Protection Visa 866 Health Requirements for Family Members

Every member of the family unit who is included in the Subclass 866 application must meet the protection visa 866 health requirements, including children. Each person included in the application has their own health examinations, and the application cannot be finalised for the family until each person's requirements are met.

The examinations required for a child depend on the child's age. Younger children are generally not required to have a chest x-ray unless the medical officer asks for one. A child born after the application was lodged is taken to be included in the application, and the Department will advise what health examinations, if any, the child needs.

A family member's failure to complete their examinations affects that person's ability to be granted the visa. The safest course is for the family to treat the health examinations as a shared task, with one person checking that every family member has attended and that every further request has been completed.

Does a Serious Illness Affect a Subclass 866 Application?

No, a serious illness does not of itself prevent the grant of a Subclass 866 visa, because the general health requirement in public interest criteria 4005 and 4007 does not apply. An applicant with cancer, HIV, a disability, a chronic condition or a mental health condition can be granted a Subclass 866 visa if they are owed protection and meet the other criteria, including completing the required examinations.

Some conditions affect the process under the protection visa 866 health requirements. Active tuberculosis is a public health concern, and an applicant diagnosed with it can expect to be required to undergo treatment or follow-up with a state or territory health service. The Department may not be satisfied that the health criteria are met until the medical officer is satisfied with those arrangements.

A medical condition can also be relevant to the protection claim itself, and to the way the applicant gives evidence. Those questions are separate from the protection visa 866 health requirements and are covered in the next sections.

When a Medical Condition Is Relevant to the Protection Claim

A medical condition can be relevant to the protection claim in limited circumstances, but the lack of medical treatment in the home country is not usually enough on its own. The refugee and complementary protection tests look at the reason for the harm and who is responsible for it.

• The refugee test. Under section 5J(5) of the Migration Act 1958, serious harm can include denial of access to basic services, where the denial threatens the person's capacity to subsist. Where a person would be denied treatment because of their race, religion, political opinion, nationality or membership of a particular social group, the denial may form part of a claim of persecution. A general shortage of medical care, affecting everyone, is not persecution.
• The complementary protection test. Under section 36(2)(aa), the applicant must face a real risk of significant harm, such as torture or cruel, inhuman or degrading treatment. The High Court has held that the definitions of those forms of harm require an intention to inflict the harm. The inability of a health system to provide treatment is not usually intentional harm in that sense. Our page on complementary protection explains the test.

Some claims do engage health. A person with a mental illness or disability may, in some countries, be targeted because of it, and the condition may help define a particular social group. Each claim depends on the evidence and the country information. The protection visa 866 health requirements are a separate criterion from these questions, and meeting them says nothing about whether the claim will succeed.

Health, Trauma and the Protection Visa Interview

Medical evidence can help a decision maker understand how an applicant gives evidence. Trauma, torture and mental illness can affect memory, concentration and the way an account is told. Where that is the case, it should be supported by a report from a treating doctor or psychologist and put before the decision maker before the interview.

This is not part of the protection visa 866 health requirements. It is part of presenting the claim fairly. A decision maker who knows that an applicant has a diagnosed condition affecting recall is better placed to assess apparent inconsistencies. A decision maker who learns of it only after refusing the application may never consider it. Our page on the protection visa interview explains how the interview is conducted. Medical records can also corroborate the claim itself, for example where they record injuries consistent with the harm described. Our protection visa documents checklist lists the kinds of records worth gathering.

Health Examinations, Timing and Processing

The health examinations are one of several checks that must be completed before a Subclass 866 application can be decided, and outstanding examinations can delay a decision. The Department cannot be satisfied that the protection visa 866 health requirements are met until the results for every applicant have been received and assessed.

Health results also have a limited life for some purposes. If an application takes a long time to decide, the Department may ask for some examinations to be repeated. An applicant who receives a new health request after already attending should not assume it is an error. It should be completed like the first. Our article on protection visa processing times explains the other factors that affect how long a decision takes, and our guide to bridging visas in Australia explains the visa that keeps the applicant lawful while they wait. Keeping on top of the protection visa 866 health requirements is one of the simplest ways an applicant can avoid unnecessary delay.

What Happens If a Subclass 866 Visa Is Refused on Health Grounds

If a Subclass 866 visa is refused because the health criteria were not met, the applicant can usually apply to the Administrative Review Tribunal for review, within a time limit that is short and strictly applied. The Tribunal decides the case afresh on the material before it at the time of its decision.

Where the refusal was based only on examinations not having been completed, the applicant should complete the outstanding examinations as soon as possible and tell the Tribunal. The Tribunal must still be satisfied of the protection claim and the other criteria. A refusal on health grounds is sometimes the first stage at which an applicant realises that no one reviewed the protection claim properly, and the review should address both. Our pages on protection visa refusals and on appealing a protection visa refusal to the ART explain the process.

Common Misunderstandings About the Protection Visa 866 Health Requirements

Misunderstandings about the protection visa 866 health requirements cause two opposite problems. Some applicants do not apply because they believe their illness will lead to refusal. Others treat the examinations as a formality and miss them.

• "My illness means I will be refused." The general health requirement does not apply to the Subclass 866 visa. A serious illness does not of itself prevent grant.
• "I need a health waiver." No health waiver is needed, because there is no health requirement of the kind a waiver is designed to overcome.
• "The examinations can wait until after the interview." They should be completed when the Department asks. A delay can hold up or defeat the application.
• "Only the main applicant needs examinations." Every family member included in the application has their own requirements.
• "The health examination decides the protection claim." It does not. The protection claim is decided under section 36 of the Migration Act 1958.

How My Migration Lawyers Helps Applicants With Health Issues in a Subclass 866 Application

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases, including applicants with serious medical conditions, applicants with trauma or mental health conditions that affect how they give evidence, and families with several members completing health examinations. The firm deals with the protection visa 866 health requirements as part of managing the whole application, so that a strong claim is not lost to a procedural failure.

• Clear advice on the health criteria. We explain what the health criteria require, and why a medical condition does not of itself prevent grant.
• Tracking the examinations. We monitor HAP ID letters, further test requests and deadlines for every family member.
• Medical evidence for the claim. Where a condition affects how the applicant gives evidence, or corroborates the claim, we advise on obtaining a report and putting it before the decision maker in time.
• 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 if needed. If an application is refused, we act on the Tribunal review within the time limit.

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.

The protection visa 866 health requirements are rarely the reason a genuine claim fails, unless the examinations are missed. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.