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457 Visa Recruitment | Key Questions to Ask

  
  
  
457 visa recruitment
  • Even everyday medical conditions that do not affect a person’s ability to work must be disclosed to DIAC

  • It is important that the prospective employee tells the employer or its migration agent about the medical issue early in the recruitment phase to limit visa processing time delays.

  • The employer must consider privacy and equal opportunity laws when discussing the issue with the prospective employee.

  • Review the 457 Employer Checklist and Interview Procedure before making a job offer.

 

Most people are unaware that simple conditions that may not affect a person’s ability to work are disclosable in the visa application or that their family’s health will be scrutinised too.  Taking prescription medication or a diagnosis of a medical condition can delay processing of an Australian visa application.  This applies regardless of whether the issue relates to the visa applicant or a dependent family member included in the application. It is good practice to deal with these issues early in the process to avoid undue stress, delay and expense in a visa application.

Waiver

For some visas categories, a medical condition will result in the visa application being refused.  Some visa subclasses have a medical “waiver” provision so that, in certain circumstances, visas can be issued even if the applicant or a dependent does not meet the medical requirements.  The Subclass 457 visa has a waiver provision.

Health & Subclass 457

We have developed an 457 Employer Health Checklist and Interview Procedure, as discrimination and privacy laws can make it difficult to explore some of these issues at interview stage.  This summary is not appropriate for applicants for other visa subclasses.

Common Problem?

But is this a common problem?  Consider these scenarios when the applicant is seeking a Subclass 457 visa:

Scenario One

Rob has a daughter who has a mild medical condition treated by daily medication.  While she is taking medication, the medical condition does not affect her ability to attend school or participate in life.  Does the daughter’s medical condition have to be disclosed?

Scenario Two

John’s wife suffers from depression, for which she takes medication.  She works full-time.  Does the wife’s medical condition have to be disclosed?

Scenario Three

Gerry is a British citizen who has been living in Indonesia for the past four years.  His wife is four month pregnant with their second child.  Does the wife’s pregnancy have to be disclosed?

Scenario Four

Tom is a keen runner.  Five years ago his doctor noticed (as an incidental finding) that he has a slightly enlarged heart and investigations by a cardiologist were undertaken.  The medical conclusion was that his heart was enlarged due to exercise and not disease.  Tom has always felt very well and this does not affect his ability to work or engage in an active life.  Does Tom’s enlarged heart have to be disclosed?

Scenario Five

Wendy is married with four children.  Her son has Asperger’s Syndrome – a condition on the Autism Spectrum.  He does not have an intellectual disability.  He attends a mainstream school.  Does her son’s condition have to be disclosed?

Questions:

  1. Do these conditions have to be disclosed?
  2. How will disclosure affect visa processing?
  3. Will the issue result in the visa application being refused?

 Disclosure

You must always disclose medical conditions.  If you do not and the condition later comes to the attention of the Department of Immigration & Citizenship (“DIAC”) you may be found to be in breach of Public Interest Criteria 4020 for having either given information that is false or misleading or having relied on bogus documents.  This could affect your current visa and applications for other visas.

How does a medical condition affect visa processing?

Often medical conditions are only disclosed after the visa process has commenced.  This changes the application from one likely to be processed in under a month to one which will take several months to conclude.  The result could sometimes be a visa refusal. 

The disclosure of a medical condition triggers a request to attend a medical review by a Department of Immigration & Citizenship- approved doctor, who is a general practitioner.  This review can generally be arranged within a few weeks.

In the case of the pregnant women living in Indonesia, she would be required to undergo a chest X-ray as part of the medical review as Indonesia is classified as “higher risk” due to the prevalence of tuberculosis.  As X-rays are not recommended in pregnancy, her X-ray could not take place until after the birth of the baby in five months time.  This means that the visa could not be processed until that time.

The results of the first medical review will then be forwarded to the Medical Officer of the Commonwealth for an opinion as to whether the visa applicant meets one of the visa requirements – Public Interest Criterion 4006A (“PIC4006A”).  This step can take several months.

If the MOC finds that the visa applicant does not met PIC 4006A, the employer must provides an “undertaking” in writing in which the employer agrees to meet all costs relating to the disease or condition.  DIAC will then assess the ability of the employer to honour the undertaking by reviewing “suitable documentary evidence”.  Once this process is satisfactorily completed, the visa will be issued.

If the employer chooses not to make the undertaking, then the visa will be refused.

How Long Does a Health Undertaking Take To Put in Place?

Unlike visa processing, where DIAC regularly issues average processing times by visa subclass, no statistics are released in relation to average time to put a health undertaking in place.  In our experience this process always takes a minimum of three months - but often much longer.

This delay results in frustration, stress, delay and expense – particularly if the candidate has already resigned from his/her former position and is unemployed.  And the employer still has a vacant position with no clear picture of how long a decision on the visa can take.

How Should We Deal with Health Disclosure?

  • Even simple medical conditions must be disclosed to DIAC

  • It is important that the prospective employee tells the employer or its migration agent about the medical issue early in the recruitment phase

  • The employer must consider privacy and equal opportunity laws when discussing the issue with the prospective employee.  Review the Interview Procedure on how to approach this.

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