Partner Visa: Addressing the "One Fails, All Fail" Criteria for Family Members
When submitting an Australian visa application, whether for temporary or permanent residence (PR), applicants are typically required to fulfil the health requirement. This requirement is the same for partner visa applications. The health requirements, along with the conditions for any possible health waivers, are outlined in Schedule 4 of the Migration Regulations 1994 and are referred to as the Public Interest Criteria (PICs), in this case, PIC 4005 and PIC 4007.
What are PIC 4005 and PIC 4007?
Both PIC 4005 and PIC 4007 stipulate that an applicant must be free from tuberculosis, as well as free from any disease or condition that could:
Potentially lead to the need for ongoing healthcare or community services;
Incur a significant cost to the Australian community; and
Prevent Australian citizens and permanent residents (pr) from being able to access health care services
However, a key distinction exists between PIC 4005 and PIC 4007 in the form of a health waiver. For visas where PIC 4005 applies, should the applicant fail the health criterion, the visa cannot be granted. On the other hand, for visas where PIC 4007 applies, an applicant who fails the health criterion has the ability to apply for a health waiver.
Which Visas Do PIC 4007 Apply To?
Some examples of visas where PIC 4007 applies include but are not limited to:
Recent Change in Law
As of 16 October 2024, a change was brought into effect via the Migration Amendment (Public Interest Criteria 4005 and 4007) Regulations 2024. This amendment modifies PIC 4005 and PIC 4007 to exclude their application to minor visa applicants who were both born in Australia and are ordinarily resident there.
What Does “One Fails, All Fail” Really Mean?
The health requirement is generally applied in such a way that it follows a "one fails, all fail" principle. This means that if any single member of the family unit does not meet the required health standards, the entire family's visa applications may be rejected. In other words, even if only one person in the family unit is found to have a medical condition or health issue that does not meet the prescribed criteria, it will affect the visa approval for everyone involved, regardless of whether the other family members meet the health requirements. This would include a spouse, de facto partner or child.
Another Public Interest Criteria (PIC) that operates through a "one fails, all fail" concept is PIC 4020.
What is PIC 4020?
PIC 4020 serves as an important safeguard designed to uphold the integrity of the visa migration program by curbing fraudulent activities. PIC 4020 addresses two key aspects concerning a visa application:
The submission of bogus documents or providing false or misleading information.
The requirement to prove your identity to the Department.
Applicants who breach these requirements face serious consequences, including a refusal of their visa application and a ban on being granted any future visa applications for a period of three years (the exception being that the breach of PIC 4020 was made when an applicant was under the age of 18).
Is a Waiver Possible for the Three-Year Non-Grant Period?
A waiver for PIC 4020 may be requested if the Department is convinced that one of the following circumstances applies, giving grounds for the approval of the visa:
compelling circumstances that affect the interests of Australia; or
compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand Citizen.
It is important to note that the terms “compelling” and “compassionate” are not explicitly defined in the Migration Regulations. As such, each circumstance will be evaluated individually based on the case officer’s own discretion to determine if such situations are present.
The health criteria required for obtaining an Australian visa can be intricate, and submitting supporting evidence for a health waiver request can often feel overwhelming. However, consulting with a professional can greatly alleviate this stress. They can guide you in presenting the strongest possible case, increasing your chances of a favourable outcome.
How Can Agape Henry Crux Assist
Appealing a matter requires you to act quickly for a favourable decision. Speak with one of our Accredited Specialists in Immigration Law at Agape Henry Crux, as they specialise in handling highly complex matters. You can schedule an appointment to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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