For those over the age of 50 who have been refused a permanent visa on health grounds, and are too unwell to leave Australia, the Medical Treatment (Subclass 602) visa has a dedicated ‘unfit to depart’ category that allows an individual to remain lawfully for an extended period.
A serious condition or diagnosis can leave a visa holder unable to travel just as their visa stay period is running out, or after a permanent visa has been refused on health grounds. This article explains:
- what the Department of Home Affairs means by ‘unfit to depart’;
- who can use the ‘unfit to depart’ category under subclause 602.212(6) of the Migration Regulations 1994 (Regulations);
- what is waived, how the medical assessment works, and what the visa allows; and
- the options for people who are medically unable to travel but fall outside that category.
What does ‘unfit to depart’ mean?
You are ‘unfit to depart’ if a permanent or deteriorating disease or health condition prevents you from leaving Australia, and a Medical Officer of the Commonwealth (MOC) confirms this in writing.
Departmental policy says a person will generally be considered fit to depart if they:
- can travel unassisted and unaccompanied on an international flight;
- need no special health arrangements for the flight;
- can travel without undue discomfort; and
- are unlikely to suffer significant psychological trauma or distress, for example from being parted from family in Australia.
How the assessment works
The MOC’s opinion is fundamental as it ultimately decides whether the person is indeed ‘unfit to depart’.
Practically, the steps would be:
- The case officer assessing the visa completes Form 1148 ‘Assessment of Medical Condition (Referred Health Assessment) for use in Australia only’.
- If more evidence is needed, the case officer issues an ‘assessment referral letter’ setting out what the applicant and their treating doctor should provide.
- With the applicant’s consent, the form and medical records go to the Migration Medical Services Provider (currently BUPA) for an ‘on the papers’ assessment by a MOC.
- If that is not possible, the applicant may be asked to attend a physical examination (for which a fee applies).
- If the applicant is too unwell to attend and has a medical certificate saying so, an in-home assessment can be requested, at additional cost.
The Subclass 602 ‘unfit to depart’ category
Subclause 602.212(6) of the Regulations is a narrow pathway specific for these circumstances, and ‘waiving’ many of the other usual Medical Treatment visa requirements.
Who is eligible
The applicant must:
- be in Australia;
- be 50 years of age or older;
- have applied for a permanent visa and appear to meet every criterion for it except health (public interest criterion 4005 or 4007), and have been refused that visa; and
- be medically unfit to depart Australia because of a permanent or deteriorating disease or health condition, confirmed in writing by a MOC.
The health refusal requirement
The earlier refusal must have been a permanent visa refused in Australia on health grounds. Policy clarifies several points:
- You need not have been the primary applicant. A member of the family unit on a permanent visa application can qualify.
- Review status does not matter. It is irrelevant whether the refusal was affirmed on review or is still under merits review with the Administrative Review Tribunal.
- The record must show a health refusal. Officers can rely on a health-related refusal reason in the visa system or a decision record showing the health requirement was not met.
- Not completing medicals is not enough. If the applicant did not complete the required immigration medical examination for the permanent visa, they cannot rely on this category of the Medical Treatment visa.
What applicants in this category do not need to meet
Applicants in this category are excused from several criteria that otherwise can make the Medical Treatment visa quite difficult to successfully be approved for. Notably, applicants assessed as being ‘unfit to depart’ do not need to demonstrate:
- a genuine temporary stay;
- a treatment plan;
- the ability to pay for treatment or have it covered;
- sufficient funds to support themselves;
- that they will not disadvantage an Australian citizen or permanent resident;
- that they have compelling personal reasons or exceptional circumstances for a stay of more than 12 consecutive months.
A number of public interest criteria are also waived:
- Character and security (4001, 4002, 4003);
- Debts to the Commonwealth (4004).
Even with these PICs waived, though, do note that the Minister’s power to refuse on character grounds under section 501 of the Migration Act 1958 remains.
What the visa allows
- Extended stay: The visa may be granted for an extended period, reflecting a permanent or deteriorating condition that prevents departure.
- Single entry only: A multiple-entry visa will not be granted, because the holder is not expected to travel. If the holder leaves Australia, a brand new visa is needed for re-entry.
- Family members: Members of the family unit can be granted an MTV under the secondary criteria.
What if you do not fit the ‘unfit to depart’ category?
For others who are too unwell to travel may not be able to rely on the ‘unfit to depart’ category, for example because they are under 50 or were never refused a permanent visa on health grounds.
Policy confirms that an applicant who is ‘medically unable’ to depart but does not meet subclause 602.212(6) must be considered under another Medical Treatment Visa category. The usual criteria then apply, including a treatment plan, funds and a genuine temporary stay.
Other avenues may also be relevant, depending on your history:
- Health waiver: Some permanent visas allow the health criterion to be waived (PIC 4007).
- Merits review: A permanent visa refusal may be reviewable by the Administrative Review Tribunal. The applicant remains in Australia on a Bridging Visa while awaiting an outcome.
- Ministerial intervention: In limited cases, the Minister’s personal, non-compellable powers can be sought after a tribunal decision.
How Hannan Tew Lawyers can help
If you or a family member is too unwell to leave Australia, early advice can protect your lawful status and your options. We can:
- assess whether you meet the ‘unfit to depart’ or another category of the Medical Treatment visa;
- obtain and review your permanent visa refusal records;
- work with your treating doctors to prepare medical evidence that addresses the Department’s criteria;
- prepare and lodge the Subclass 602 application, including for family members; and
- advise on review, waiver and ministerial intervention options.
If you require assistance, feel free to reach out to our team or book a consultation to discuss your best next steps.
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