The Health Criteria:

Assessment, Challenging Validity and

Complex Policy Issues
Dr Jan Gothard
Disability and Health Specialist
Estrin Saul Lawyers
24 February 2017
 Reg 2.25A(3) of the Regulations

The Minister is to take the opinion of the Medical Officer of

the Commonwealth […] to be correct for the purposes of
deciding whether a person meets a requirement or satisfies a
criterion.
“The current regulations state that a processing officer must
take the opinion of a Medical Officer of the Commonwealth
to be correct. This provision prevents case officers from
substituting their own view as they do not have the required
specialist skills or knowledge to make a decision as to
whether an applicant with a serious health condition meets the
requirement.”

Australian Government response to the Joint Standing Committee on

Migration report: Enabling Australia, Inquiry into the Migration Treatment
of Disability, November 2012
 Responding to a s57 request

• If the applicant provides no substantive information or

information that is not medical in nature, delegates may
assume that the original MOC opinion is correct.

• If the applicant provides new information that is medical in

nature, delegates should send this information to the MOC for a
new opinion.
 What is a lawful medical opinion?
• lists the reports considered in forming the opinion;

• states the applicant’s health condition;

• describes the severity of the condition;

• describes the health care or community services likely to

be required by a hypothetical person who has the same
condition as the applicant (including the same severity); and

• specifies the assessed period of stay.

 What makes up the MOC opinion?

• medical assessment of the health or disability condition;

• confirmation of the time frame over which the visa is costed or

assessed;

• some understanding of the circumstances of the applicant;

• costing the above based on schedules set out in the various

Notes for Guidance for Medical Officers of the Commonwealth.
 Subitem (1)(c) - PIC 4005, 4006A, 4007
An applicant is free from a disease or condition in relation to which:

(i) a person who has it would be likely to:

(A) require health care or community services; or
(B) meet the medical criteria for the provision of a community service;
[…] and

(ii) the provision of the health care or community services would be likely to:
(A) result in a significant cost to the Australian community in the areas of
health care and community services; or
(B) prejudice the access of an Australian citizen or permanent resident to
health care or community services;

regardless of whether the health care or community services will actually

be used in connection with the applicant.
 Waiver for PIC 4007
The Minister may waive the requirements of subitem (1)(c) if:

(a) the applicant satisfies all other criteria for the grant of the
visa applied for; and

(b) the Minister is satisfied that the granting of the visa would
be unlikely to result in:
(i) undue cost to the Australian community; or
(ii) undue prejudice to the access to health care
or community services of an Australian citizen or permanent
resident.
 What are health and community
services?

• Commonwealth disability services

• State disability services

• Health services including pharmaceutical benefits

• Special education services

 Costs for Commonwealth disability
services

• Excluded for temporary visa applicants (see IMMI 11/073)

• ‘The Instrument operates to list health care and community

services that a temporary visa applicant would be
unlikely to be able to access while in Australia’
(Explanatory Statement to IMMI 11/073)
Who is entitled to Medicare?

[a] person … who is lawfully present in Australia

and whose continued presence in Australia is not
subject to any limitation as to time imposed by
law.

s3(d) of the Health Insurance Act 1973 (Cth)

State disability services and NDIS
• Temporary residents are not currently eligible for
state disability services in most States and
Territories.

• Eligibility for National Disability Insurance Scheme

(NDIS) is confined to:

• Australian citizens;
• Australian permanent residents; and
• Protected New Zealand citizens.
A more practical approach to
waivers?
• Delegates should consider the practical realities of
waiving the health criteria.

• Delegates should consider whether the grant of this visa

in itself could lead to the particular costs identified by
the MOC.
 Actual use of services irrelevant
In determining whether an applicant’s condition is likely to result in
significant costs or prejudice access, MOCs cannot take into account
whether the applicant will actually use the identified health care or
community services.

They must assess the likelihood of an applicant’s condition resulting in

a need for health care or community services without regard to the
applicant’s personal circumstances or any claims by the applicant
that they do not intend to use the identified care or services.

Intentions cannot legally be enforced once permanent residency is

obtained. Some applicants may also simply change their mind
regarding services once residence is achieved and the full level of
costs is realised.

PAM3: Sch4/4005-4007 - The health requirement

‘MOCs must provide an opinion as to whether an applicant’s
condition or disease would be likely to result in “significant”
health care and community service costs if a visa were to be
granted’.

PAM3: Sch4/4005-4007 - The health requirement

Case studies
 Suggestions for interpreting MOC
opinions
• Has the age of the applicant been considered?

• Have the particular requirements of the visa been

considered?

• Eligibility for Medicare?

• Residential eligibility for state disability services?

 Suggestions for interpreting MOC
opinions

• Does the MOC opinion adhere to and to reference the costs in

Notes for Guidance for Medical Officers which have been
drawn on in forming the opinion?
 Future challenges - NDIS

‘When calculating costs for visa applicants under the NDIS,

each person’s level of disability and individual
circumstances must be assessed to accommodate the wide
spectrum of circumstances that affect eligibility and options for
disability support.’

Notes for Guidance for Medical Officers, February 2016