Protection Visa Subclass 866: Health Requirements

Protection Visa Subclass 866: Health Requirements in Brief

The Protection Visa Subclass 866 health requirements oblige each applicant to complete the medical examinations the Department of Home Affairs requires, by the time the Department asks for them. The requirements are in clauses 866.223 to 866.224B of Schedule 2 to the Migration Regulations 1994. In most Subclass 866 applications, the health criteria are not where the case is won or lost. They are where it is lost unnecessarily, through a missed appointment, an unread email or a family member who did not attend.

This article deals with that procedural side of the Protection Visa Subclass 866 health requirements. It explains when the examinations happen, how deadlines work, what happens when an examination is missed, how family members are treated, and how health issues are dealt with in detention and at the Administrative Review Tribunal.

The substance is short. The Subclass 866 visa does not include public interest criteria 4005 and 4007, the general health requirement applied to many other visas, so the cost of an applicant's medical condition is not a ground for refusal. What matters is that the required examinations are completed and any related undertaking is followed. For an overview of the visa, see our Subclass 866 Protection visa page and our complete guide to the Subclass 866 Protection visa.

Protection Visa Subclass 866: Health Requirements and the Law

The Protection Visa Subclass 866 health requirements are criteria to be satisfied at the time of decision. The Department's Protection Visa Processing Guidelines identify clauses 866.221 to 866.232 as the time of decision criteria for a permanent protection visa, and clauses 866.223 to 866.224B as the health criteria within them.

Those clauses require the applicant to undergo a medical examination, generally to undergo a chest x-ray unless an exception applies, and to comply with health undertaking requirements where the Department's medical officer considers them necessary. The exceptions to the chest x-ray include younger children and, in limited circumstances, pregnant applicants who make other tuberculosis screening arrangements.

Two consequences follow from the health criteria being time of decision criteria.

• They can be satisfied after lodgement. No medical examination is needed before the application is lodged. The Department issues the HAP ID afterwards.
• They must be satisfied before the decision. If they are not satisfied when the decision is made, the visa must be refused under section 65 of the Migration Act 1958, however strong the protection claim.

The health criteria sit alongside the other time of decision criteria, including the protection criterion in clause 866.221, the public interest criteria in clause 866.225 and the requirement in clause 866.411 to be in Australia at the time of grant. Each must be met.

The Timeline for the Health Examinations

The health stage of a Subclass 866 application follows a predictable sequence, and understanding it helps an applicant avoid the most common errors under the Protection Visa Subclass 866 health requirements.

• Lodgement. No examination is required before lodgement. Form 866 asks whether the applicant has undertaken an Australian visa health examination before, and for the earlier HAP ID if available.
• HAP ID letter. The Department issues a HAP ID and tells the applicant when to arrange the examinations. Each family member included in the application has their own requirements.
• Booking and attendance. The examinations are conducted by Bupa Medical Visa Services. The applicant books using the HAP ID and attends with identification and any relevant medical records.
• Assessment. The results are assessed by the Department's medical officers. Further tests or specialist reports may be requested.
• Clearance or follow-up. The applicant is either cleared or asked to complete follow-up, such as treatment for tuberculosis or a health undertaking.

The health stage often runs alongside the interview and other checks, and the Protection Visa Subclass 866 health requirements are assessed in parallel with the claim. Completing the examinations promptly means that the health criteria are not what holds up a decision once the claim has been assessed. Our article on protection visa processing times explains the other factors that affect timing.

Why Procedural Failures Matter More Than Medical Conditions

Under the Protection Visa Subclass 866 health requirements, a procedural failure is a far greater risk to an application than any medical condition. The criteria do not ask whether the applicant is healthy or whether treatment will be expensive. They ask whether the required examinations and follow-up have been completed. An applicant with a serious illness who attends every appointment is in a stronger position than a healthy applicant who misses one.

The consequences of a procedural failure are also more serious in a protection matter than in most other visa matters. Section 48A of the Migration Act 1958 generally prevents a further protection visa application after a refusal while the applicant remains in Australia. An applicant refused a partner or student visa may be able to apply again. An applicant refused a protection visa usually cannot. The Tribunal review is therefore likely to be the only remaining opportunity within the ordinary process.

For this reason, the Protection Visa Subclass 866 health requirements should be managed with the same care as the protection claim itself. Someone, whether the applicant, a family member or a representative, should take responsibility for every health letter, every appointment and every deadline for every person included in the application.

Protection Visa Subclass 866: Health Requirements and Deadlines

A request from the Department to complete health examinations usually gives a date, and that date should be treated as a firm deadline under the Protection Visa Subclass 866 health requirements. Once a date set by the Department passes, it can decide the application on the information it already holds. If the examinations have not been completed by then, the health criteria cannot be met.

A request for health examinations, or for further tests, is handled in the same way as any other request for information. Our guide on responding to a section 56 request for more information explains how those requests operate. Three practical rules apply to health deadlines.

• Book immediately. Appointment availability varies by location, and a late booking can make the deadline impossible to meet.
• Tell the Department before the deadline if there is a problem. Where illness, hospital admission, pregnancy or another genuine reason prevents attendance, the Department should be told in writing, with evidence, before the date passes. A request for more time made after the deadline is much weaker.
• Keep evidence of attendance. Booking confirmations and attendance records are useful if the Department later says the examinations were not completed.

Protection Visa Subclass 866: Health Requirements When an Examination Is Missed

A missed examination is not always fatal, but it must be dealt with immediately. The Protection Visa Subclass 866 health requirements are satisfied when the examinations are completed, so the priority is to complete them before the Department makes a decision.

An applicant who has missed an appointment should take these steps without delay.

• Rebook the appointment at the earliest available time.
• Write to the Department through ImmiAccount, explaining that the appointment was missed, why, and when it has been rebooked, with any supporting evidence.
• Check every family member's requirements, because a missed appointment for one person is often a sign that others are also outstanding.
• Check contact details, because a missed appointment often follows a letter sent to an old address or email.
• Obtain advice if a decision date is close or the Department has already written about the missed appointment.

If the Department has already refused the application because the health criteria were not met, the position changes. The applicant should obtain advice about Tribunal review at once, because the time limit for applying is short and strictly applied. Our guide on urgent immigration lawyer advice explains what to prepare when time is short.

Health Undertakings and Follow-Up Appointments

Where the Department's medical officer considers it necessary, an applicant may be asked to sign a health undertaking and to attend follow-up appointments with a state or territory health service. This most commonly arises where the examinations show inactive tuberculosis, a past history of tuberculosis, or an abnormal chest x-ray that needs further investigation.

A health undertaking is not a refusal, and it is not a sign that the application is in difficulty. It is a way for the Department to be satisfied of the Protection Visa Subclass 866 health requirements while the applicant's condition is monitored. The undertaking must, however, be taken seriously. The applicant should sign and return it promptly, contact the health service as directed, attend every appointment, and keep records of attendance. Where the health service has difficulty contacting the applicant, the applicant should make contact themselves.

An applicant with active tuberculosis will usually need to complete treatment, or reach a stage of treatment the medical officer accepts, before the health criteria can be met. That can take time, and the Department should be kept informed of progress. Compliance with follow-up under the Protection Visa Subclass 866 health requirements is part of meeting the criteria, not an optional extra.

Protection Visa Subclass 866: Health Requirements for Family Members

Every person included in a Subclass 866 application must satisfy the Protection Visa Subclass 866 health requirements, and each person's examinations are tracked separately. A primary applicant who has completed their own examinations has not completed the family's.

Several situations need particular attention.

• Partners and children added after lodgement. A spouse, de facto partner or dependent child in Australia can be added to the application on Form 1436 before a decision is made. The person added will need their own examinations.
• Children born after lodgement. A child born to an applicant after the application is lodged is taken to be included in it. The Department will advise what examinations, if any, the child needs.
• Younger children. Younger children are generally not required to have a chest x-ray unless the medical officer requests one, but they may still need other examinations.
• Family members overseas. A family member outside Australia cannot be included in the application and has no health examinations for it.

Changes in the family affect the Protection Visa Subclass 866 health requirements for the whole application, and should be notified on Form 1022 or through ImmiAccount, so that the Department issues the correct health requirements for each person.

Health Requirements for Protection Visa Applicants in Immigration Detention

For a protection visa applicant in immigration detention, the health criteria have an additional practical importance. The Department's guidance on the Bridging visa E (Subclass 051), which can be granted to certain protection visa applicants, states that the decision maker must be satisfied that the applicant meets public interest criteria 4001, 4002 and 4003 and the health criteria in clauses 866.223, 866.224, 866.224A and 866.224B.

In other words, the Protection Visa Subclass 866 health requirements can affect whether a detained protection applicant can be released on a bridging visa while the application is decided. Health examinations for detained applicants are usually arranged through detention health services. A detained applicant, or their representative, should confirm that the examinations have been arranged and completed, because an outstanding examination can delay a bridging visa as well as the protection decision. Our guide to bridging visas in Australia explains the different bridging visas.

Repeat Examinations During Long Processing

Health results under the Protection Visa Subclass 866 health requirements are not always accepted indefinitely, and an applicant whose Subclass 866 application takes a long time to decide may be asked to repeat some examinations. A new request after an earlier clearance should not be ignored or assumed to be an error. It should be completed in the same way as the first.

This is one of the less obvious features of the Protection Visa Subclass 866 health requirements. Because they are time of decision criteria, the Department must be satisfied of them when it decides. Where there has been a long delay, a change in health, or travel to a place with a higher risk of tuberculosis, the medical officer may need current information. The applicant should keep records of every examination, including the HAP ID and the date of attendance, so that any question about earlier results can be answered quickly.

Protection Visa Subclass 866: Health Requirements at the Administrative Review Tribunal

If the Department refuses a Subclass 866 application, the Administrative Review Tribunal reviews the decision on its merits and considers the criteria on the material before it at the time of its own decision. This is important for refusals based on the Protection Visa Subclass 866 health requirements.

Where the Department refused only because examinations had not been completed, the applicant should complete the outstanding examinations as soon as possible and tell the Tribunal. The Tribunal must still be satisfied that the applicant is owed protection. In many cases the Department, having found the health criteria unmet, did not fully assess the claim, and the Tribunal will need to consider it for the first time. The review should therefore address the protection claim in full, not only the health issue.

The time limit for applying to the Tribunal is short and strictly applied, and it runs from notification of the refusal. Section 48A of the Migration Act 1958 generally prevents a second protection visa application while the applicant remains in Australia, so the review is usually the most important remaining step. Our pages on protection visa refusals, on the ART review of a Subclass 866 refusal and on the protection visa ART hearing explain the process.

How Health Requests Reach the Applicant

Most problems with the Protection Visa Subclass 866 health requirements begin with a letter that did not reach the applicant in time. The Department prefers to communicate electronically, and HAP ID letters and requests for further tests are commonly sent by email or through ImmiAccount.

Where the applicant has appointed an authorised recipient on Form 956A, or a lawyer or registered migration agent on Form 956, the Department writes to that person. Form 866 explains that the applicant is taken to have received any document sent to an authorised recipient as if it had been sent to the applicant. Deadlines can therefore start running before the applicant personally reads the letter. Our guide to Form 956 and Form 956A explains how these appointments work.

The practical steps are simple. Check the nominated email account regularly, including junk folders. Check ImmiAccount. Notify any change of address or email at once. Make sure the person nominated to receive communications passes on health requests immediately.

Applicants who share an email account with a relative or friend, or who rely on another person to read English correspondence, are particularly exposed. A health request may sit unread for weeks. Where that is a risk, the applicant should consider appointing a representative who will monitor correspondence and deadlines, or at least arrange for someone reliable to check the account daily. The Department is entitled to proceed on the basis that a request sent to the nominated address was received, so an explanation that the email was not seen will rarely prevent a refusal. Treating every message from the Department as urgent is the simplest protection against this risk under the Protection Visa Subclass 866 health requirements.

Protection Visa Subclass 866: Health Requirements After Grant

Once the Subclass 866 visa is granted, the health criteria have been satisfied, and the holder's health does not affect the continuation of the visa. The holder becomes an Australian permanent resident on the day of grant and, according to the Department of Home Affairs, can access government services such as Medicare.

Some practical obligations may continue. Where a holder signed a health undertaking during the application, the holder should continue to follow any treatment or monitoring arrangements the health service requires. The holder must also comply with the other obligations of the visa, including condition 8559, which prohibits entry to the country from which protection was granted without the Department's written approval given before travel. Understanding the Protection Visa Subclass 866 health requirements to the point of grant, and the obligations that follow it, allows a family to plan with confidence once protection has been granted.

A Checklist for the Health Stage of a Subclass 866 Application

The following checklist covers the points under the Protection Visa Subclass 866 health requirements that most often go wrong.

• The HAP ID letter has been received for every person included in the application.
• Appointments have been booked for every person, and booking confirmations kept.
• Each person has attended with identification and any relevant medical records.
• Any further tests or specialist reports requested have been completed.
• Any health undertaking has been signed and is being followed.
• Any pregnancy, hospital admission or other reason affecting attendance has been notified in writing, with evidence.
• Contact details held by the Department are current.
• Any partner or child added after lodgement, or born after lodgement, has had their own requirements confirmed.

How My Migration Lawyers Manages the Health Stage of a Subclass 866 Application

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases, including families with several members completing examinations, applicants with serious medical conditions, applicants in immigration detention, and applications where an examination has already been missed. The firm manages the Protection Visa Subclass 866 health requirements as part of the whole application, so that a strong protection claim is not lost to a procedural failure.

• Tracking every requirement. We monitor HAP ID letters, further test requests and deadlines for every family member.
• Acting on missed examinations. We write to the Department, explain the circumstances and ensure the examinations are rebooked and completed before a decision.
• Detention matters. We confirm that health examinations are arranged for detained applicants so that bridging visa and protection decisions are not delayed.
• The protection claim itself. 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 an application is refused, we act on the Tribunal review within the time limit and address both the health criteria and the claim.

The practice is led by Principal Lawyer Weiwei Zhang, who acts in protection visa matters for clients across Australia. Consultations are held by video. Applicants who lodged without advice can appoint the firm at any stage, as our guide on hiring an immigration lawyer after lodging a visa application explains. Our protection visa lawyers page sets out how the firm acts in these matters.

A missed health examination is one of the most avoidable reasons for losing a protection visa. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.