New visa conditions for public health debts, health insurance arrangements; criminal conduct and integrity

A new set of regulations will come into effect from 18 November 2017, and will apply to any visa application made on or after that date. They will create a number of new visa conditions and with them, key changes to health, health insurance, character and integrity for affected visa applicants and visa holders.

Public health debt and health insurance

It has been a concern that for some temporary visa holders who obtain medical services in Australia but who do not have access to Medicare or are not fully covered by insurance, abscond from paying their medical costs, which then becomes difficult or impossible to recover and are absorbed by public funds.

For many temporary and provisional visas, applicants will have an additional visa condition 8602 attached, which will require them to not have an outstanding public health debt. An outstanding public health debt is defined as a debt relating to public health or aged care services that has been reported to the Department as outstanding. Reporting is up to the relevant health authority who may decide in some instances to waive a debt for compelling reasons or enter into an arrangement for the visa holder to pay their costs over time.

Interestingly, having this as a post-grant visa condition, and not a criterion for grant, such as with public interest criterion (PIC) 4004, which requires visa applicants to have no debts to the Commonwealth, means that failing to enter into suitable arrangements to pay a debt could see the affected person’s visa cancelled. This is, supposedly, a discretionary measure of last resort, and the Department of Immigration and Border Protection (DIBP) will consider the individual’s circumstances before deciding.

There are also new provisions for health insurance, which is a criterion for numerous visas. As health insurance minimums vary from visa to visa, what is considered “adequate” is defined only in policy. The new regulations create a definition for “adequate health insurance”, which can be set by legislative instrument. This will provide more legal certainty for what insurance is required for whom and it will be expected to be defined according to visa subclasses. Moreover, this will probably mean that condition 8501, which requires visa holders to maintain health insurance will be a condition easier to cancel a visa with because maintaining adequate health insurance will be reflected in the instrument. There will therefore be little wriggle room to argue should a visa holder not maintain this level of cover.

Character and integrity

The other major change is the introduction of new visa conditions, and amendments to existing ones to bolster the integrity of the migration programme.

Firstly, condition 8303, which forbids visa holders to not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community, will also forbid activities that endanger or threaten any individual. This condition is mainly used to cancel visas of controversial visitors who are granted Subclass 400 - Temporary Work (Short Stay Specialist) visas. It will be applied as a mandatory condition to most temporary visas.

Also to be imposed on most temporary visas is condition 8564, which requires visa holders to not engage in criminal conduct. This condition is currently only a discretionary condition attached to Bridging visa Es. Unfortunately, there is no policy guiding what threshold will constitute criminal conduct, such as whether summary offences or a conviction would breach this condition. The explanatory memorandum suggests ‘boiler room’ scams and driving offences of sufficient seriousness to attract a criminal penalty. This will effectively mean a greater number of people will be subject to visa cancellation because currently, the closest provision to cancel a visa under character provisions is section 501 and particularly subsection 3A for which the Minister must cancel a person’s visa if the do not pass the character test. Many visas have been cancelled when a visa holder is sentenced to a term of imprisonment of more than 12 months for an offence that has occurred while they are in Australia. When this happens, they are considered to have a "substantial criminal record" and this provides the basis for subsequent cancellation. The DIBP website states that visa cancellations have increased tenfold since subsection 3A was implemented in December 2014.

Thirdly, a new condition 8304 will be imposed on most temporary visas. This will require visa holders to identify themselves by the same name in all dealings with Commonwealth, State or Territory government agencies. If they change their name, they must take reasonable steps to notify these agencies of this change. Most likely, those who have changed their identity intentionally to deceive or defraud will be subjects of inquiry here.

Fourthly, resident return visas, a visa that renews the travel facility for permanent residents wishing to re-enter Australia, will be ineligible for any applicant whose current permanent visa is subject to cancellation. This closes a loophole which prevents an applicant from continuously applying for a resident return visa if their current visa is subject to cancellation. They will be able to apply for this visa if their cancellation is either withdrawn or set aside after a merits review.

Lastly, the integrity PIC 4020 has been extended to any previous cases of false or misleading information or providing bogus documents for any application made in the last 10 years prior to their current application, a marked increase from the current period of 12 months. It also extends to any visa application made and for any visas previously held. This prevents applicants from waiting out the current 12-month period if refused on this PIC before reapplying, and stops applicants from avoiding this PIC by withdrawing their application if detected and not yet refused.

It should be made clear that these changes, particularly regarding character and integrity, will be wide-ranging. Temporary visa holders will therefore need to be very aware of their responsibilities while in Australia.