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Lateral Thinking - Where Health Criteria cannot be met. Always important to have a strategy and defined pathway in place.

The first step in migration to Australia is lodging a valid visa application. Each visa has a different application process and criteria that the applicant is required to meet. Before applying for a visa it is important to understand the process, ensure that you will likely meet the criteria and acquire all the applicable documents to provide the best chance of the visa being granted in the initial application. Subsequent applications can become more difficult depending on why the original application was refused.  Seeking advice from immigration experts like Immigration Solutions Lawyers from the beginning can streamline the process for you with the added benefit of allowing your application to be relatively stress-free.

In this case the applicant applied for a Contributory Aged Parent (subclass 884) visa and the initial application was refused. As the applicant was not holding a substituted subclass 600 visa at the time of application, the applicant was subject to certain public interest criteria. The application was refused because the applicant did not meet the health requirements of the Public Interest Criteria of the visa, which cannot be waived for this particular visa application. The applicant in this situation had previously suffered a medical impairment.

The applicant engaged Immigration Solutions Lawyers to determine their options. Upon refusal, there is a 21 day window to apply for a merit review to the Administrative Appeals Tribunals (AAT).  The AAT is required to review the relevant Public Interest Criteria, which involved an opinion of a Medical Officer of the Commonwealth (MOC). The relevant Public Interest Criterion states that an applicant must be free of a disease or condition that is likely to require health care or community services, that is likely to result in significant cost to the Australian community in the areas of health care and community services or is likely to prejudice the access of an Australian Citizen or permanent resident to health care or community services. As such, the applicant, as stated in the MOC’s opinion, could not meet the health requirement and the AAT affirmed the decision of the DIBP to refuse the visa.

Immigration Solutions then applied for a Ministerial Intervention. The Minister has no requirement to intervene, however under the Migration Act 1958, the Minister has the ability to replace the decision of the Administrative Appeals Tribunal. The Minister decided to intervene in this case. Immigration Solutions Lawyers completed a detailed submission which addressed the MIU directions and policy and secured a Medical Treatment (subclass 602) visa with a validity period of up to 10 years (the usual period for a medical treatment visa is 1 year).

Since July 2016, changes were made to narrow the use of Ministerial Intervention, making it more important than even to ensure adherence to MIU policy and directions. Immigration Solutions Lawyers have extensive knowledge and experience, and can assist with your visa application.

Click here to read more about Immigration Solutions Lawyers and Anne O’Donoghue.

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