Visas & Advice Detail
Health and character tests
The requirements can be tough and two such requirements (including your spouse and children as well as non-migrating children from a previous relationship) are to meet the health and character tests
In every skilled visa application there is a "one fail, all fail" rule. This means that if one person fails the health or character test, then the entire application will be rejected. However, these requirements can be waived under the Family Visa stream (Spouse or Child). Also, Family Sponsored skilled applications have the right of appeal against a refusal whereas an independent application has little recourse against an adverse decision. In a nutshell, when the Australian Government is assessing if someone meets the Character Test, they will consider the nature of the offence, any time served, how long ago the offence was committed, and how many offences are listed. They will also take into consideration the country in which the offense occurred as some countries carry very strict punishments for what would be a relative minor offence in Australia.
Issues that will cause a problem are violent offences, drug charges, long periods of imprisonment and serious white collar crime. The Government's policy in regards to the Character Test is exceedingly long and detailed and every single applicant needs to provide their individual circumstances to their registered migration agent (if they're using one) to obtain complete and accurate advice on their visa chances. The health requirement, which is as detailed as the Character Test, can be summarised by saying that the Government is looking, first of all, for tuberculosis, then for any illness or condition that is contagious and/or expensive to treat and is likely to prove to be a drain on the public health system. The problem is that you cannot get around this by promising to pay for all your medical treatment through the private system, as once you are a permanent resident you cannot contract out of your public health rights.
Diseases such as cancer, HIV, renal failure, certain types of diabetes, autism, Downs Syndrome and paraplegia can be an issue. Each and every applicant should seek personal advice on their particular condition as the law in this area is complex and there are sometimes miraculous success stories where an applicant has thought they have had no hope. In some cases a pre-migration medical assessment is a good idea if you have concerns about a medical condition. There are doctors who specialise in this. When you go for a medical examination you will have a chest x-ray, blood test and full medical/body check. It is important to note that every visa category has a different health and character requirement. For example, in order to get a work permit only a chest x-ray is required for adult applicants, unless they are working in schools or hospitals, while a police clearance is not mandatory but instead a discretionary request.
You must still answer questions on your application about health and character issues, however. Below are six different situations regarding health and character checks that some applicants could find themselves in. The answers are general in nature and should not be taken as gospel. If a client were to email us direct with these situations we would be asking more specific questions prior to giving concrete advice.
Character questions
I was charged with assault (ABH) four years ago and spent three months in jail. This was the first time I have ever been in trouble with police and I have stayed clear of trouble since. Will I be allowed to emigrate?
Without seeing the Police Clearance and the Police Report to know what actually happened, I could not give an iron-clad answer in this situation, but the offense did happen four years ago and the person served only three months in jail so I would be fairly confident. If the actual sentence was for longer than this – for example, a 12-month sentence, suspended after three months – then they could run into trouble. If this situation applies to you, then it would be wise to get some very good character references from people with standing in the community, including your boss, to state that you are of good character.
I am currently banned from driving having racked up over 12 points, all for speeding. I was previously banned ten years ago for driving without insurance and tax? Will offences like this stop my dream of living in Australia?
Driving offenses are considered misdemeanors rather than criminal offences for the Character Test. Generally, situations involving traffic offences such as speeding and parking tickets will not be an issue. Even Paris Hilton's driving record would not stop her from getting a visa for Australia. However, recently rapper Snoop Dog's criminal history did result in a visa refusal!
We are looking to emigrate with our children, the oldest of whom is 19. He is now a student and will be emigrating with us when he finishes his college course. However, during his early to mid teens (14-16) he was cautioned by the police on numerous occasions and was, it has to be said, a bit of a tearaway. The last time he was in trouble was for fighting just after his 17th birthday where he had to spend the night in the cells. Will this have any negative affect on our application?
Only children over the age of 16 are required to provide clearance. Offenses committed as a child may not show up on a Police Clearance. A number of minor offences committed as a child will not disqualify you from emigrating and nor will one night in the cells be a 'bar' (no pun intended!). If the charges were of a serious nature then further submissions may be necessary and the matters raised in Question One will need to be addressed.
Health questions
I am a wheelchair-bound paraplegic. I want to emigrate to Oz but have been told I may not be able to as I could be a burden on the government. If I were to promise not to apply for any Australian Government-assisted support, could my condition be overlooked?
This is a condition which will prevent the approval of a visa, unless you are applying for a Spouse Visa. We do have one client who came to Australia on a work permit and was in a work accident that resulted in tetraplegia – a condition where someone experiences paralysis affecting all four limbs, although not necessarily total paralysis. Even though he was fully compensated after the accident and will be covered by State Government Insurances for the rest of his life, his permanent visa has been rejected. This is currently under appeal to the Minister of Immigration and we do expect to see a positive result. That being said, the accident occurred here and he was lodging an onshore visa which attracts certain appeal rights. Such a luxury is not afforded to offshore applications under the skilled migration programme unless you are being sponsored by a relative. You would still need to meet the health requirement and unfortunately in this case, we cannot see that you will do so.
When I applied to emigrate I was healthy. However, just after applying I was diagnosed with breast cancer. The lump has been successfully removed and I am currently in remission. Are my emigration dreams over?
This raises two issues: firstly, the duty of an applicant to notify the Government of a material change in circumstances. If you have already passed your medical, you do have a duty to notify the Department. If you have not had your medical, your disease will be an issue. To meet the health requirement you generally need to be 'disease free' for five years after remission. Again, to receive the best advice that is personal to your specific situation, taking in to consideration all the facts, you should speak to a registered migration agent.
I am 58 and hoping to emigrate to Australia on a Parent visa. I do, however, have high blood pressure and a dodgy knee, which does sometime require me to use a stick. Will my age be in anyway taken into account when I come to emigrate?
Your knee should not cause you any migration problems and your high blood pressure, again, should not be an issue, but the Commonwealth Medical Officer will look at the underlying cause for this. Old Age is not a reason to refuse a visa, but some of the illnesses of old age can create problems for visa applicants. You should talk to your treating doctor as well as a registered agent. You can take some comfort in the fact that the Government will not ask you to pay the second Government Lodgment fee if they are going to fail you on medical grounds.
We cannot stress enough that each application is different and quality advice can only be given with all relevant facts. Additionally, often it's the case that even a registered migration agent cannot put hand on heart and say all will be okay. If it's an issue then the best way to deal with it is in the form of good submissions with the application and additional documentary evidence to give the best possible prospects.
Ben Willis is a registered migration agent and managing director of Australian Migration and Visa Lawyers
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