Most Australian visa applications require the applicant to meet certain health criteria. If an applicant fails to meet the health criteria, a visa cannot be granted unless a health waiver is available and exercised in favour of grant.
This article will take you through:
- Australia’s health criteria for the grant of a visa;
- when a health waiver is available; and
- how to apply to “waive” the health criteria.
What is the health requirement?
Australia’s health requirements aim to:
- protect the Australian community from threats to public health;
- minimise public expenditure on health and community services; and
- safeguard Australian residents access to health and other community services in short supply.
The health requirements to be granted an Australian visa are outlined in Public Interest Criteria (PIC) 4005 and 4007.
Both PIC 4005 and 4007 require an applicant to be free from tuberculosis, and a disease or condition for which:
- the person is likely to require health care or community services; and
- the provision of the health care or community services would be likely to:
- result in a “significant cost” to the Australian community in healthcare/community services; or
- prejudice the access of an Australian citizen/PR to healthcare/community services.
The key difference between PIC 4005 and 4007 lies in the ability to ‘waive’ the health requirement. Where:
- PIC 4005 applies and the health requirement is not met, the visa cannot be granted;
- PIC 4007 applies and the health requirement is not met, the applicant can apply for a ‘health waiver’.
What is considered a “significant cost” and how a health waiver is applied is discussed further below.
Which PIC applies to me?
The PIC that applies to you will depend on the visa you are applying for. For example, PIC 4007 applies to the following:
- Partner visas;
- Child and Adoption visas;
- Temporary Skill Shortage (TSS) Subclass 482 visas; and
- Employer Nomination Scheme (ENS) Subclass 186 (Temporary Residence Transition stream only) visas.
Please note that the above is not an exhaustive list.
What is considered a ‘significant cost’ to the Australian community?
As outlined above, the health criteria requires a visa applicant to be free from a disease or condition which is likely to result in a ‘significant cost’ to the Australian community in healthcare/community services.
Under Departmental policy, the threshold for ‘significant’ costs is currently $86,000. For:
- temporary visa applications – the estimated costs for the proposed stay is assessed over the period of stay that the visa officer intends to grant the visa; or
- permanent visa applications – the period for estimating costs against this threshold is generally 5 years. However, where a condition is permanent (and the course of the disease is inevitable or reasonably predictable beyond the 5 year period), these costs are assessed over the maximum of a 10 year period.
When determining the costs associated with a condition, the Medical Officer of the Commonwealth (MOC) must consider the costs for which a hypothetical person with the same form and severity of the applicant’s condition would incur. This means that the hypothetical cost of utilising health care and community services will be considered, regardless of whether an applicant intends to use them.
What does it mean to ‘prejudice the access’ of an Australian to healthcare services?
The health requirement also states that a visa applicant must be free from a disease or condition that may prejudice the cases of an Australian citizen or permanent resident to healthcare or community services.
This refers to whether a visa applicant would require access to a treatment or service that is in short supply. The Department of Health advises whether a treatment or service is in short supply. Currently, this includes the following services:
- organ transplants (including bone marrow and stem cell transplants); and
- dialysis.
How are costs calculated?
Following a health examination, a Medical Officer of the Commonwealth (MOC) will apply their clinical judgment regarding an applicant’s specific condition guided by information contained within the Department of Home Affairs’ “Notes for Guidance” (NfG).
The NfG are documents created for various conditions that help guide MOCs in determining the costs of various pharmaceuticals/treatments that individuals with certain conditions/diseases may be entitled to receive.
The breakdown of the MOC costings are typically provided directly to visa applicants (or their representatives) if requested.
How do I apply for a health waiver?
As mentioned above, PIC 4007 has a provision to waive the health criteria. This means that where the costing an applicant’s disease or condition is assessed to be over $86,000 over the relevant time period, there is an opportunity to waive the health criteria and be granted the visa.
If you fail the health requirement and are eligible for a health waiver, you will receive a letter inviting you to put forward claims and information in support of a health waiver being exercised.
How do I show that a health waiver should be exercised?
The health requirement can only be waived if you can demonstrate that the grant of the visa will be unlikely to result it an ‘undue cost’ to the Australian community. An ‘undue cost’ is not defined by law.
However, there are various discretionary considerations that will be taken into account when determining whether the costs are ‘undue’ under Departmental policy. This includes where:
- an applicant has the ability to mitigate the costs associated with their disease or condition; or
- compassionate or compelling circumstances apply.
Factors that will be considered when determining if you have the ability to mitigate the associated costs include where:
- you or your family have substantial income, assets, or savings; or
- you have other ways to mitigate the costs involved, such as private care arrangements.
On the other hand, compassionate or compelling circumstances include where:
- Australia would miss out on a significant benefit that you could contribute to Australia’s business, economic, cultural, or other development;
- you are already settled in a remote, rural, or regional area;
- you have skills in high demand; or
- any other compelling or compassionate factors apply.
In the context of a family visa (e.g., partner or child visa), compassionate or compelling circumstances also include where:
- the Australian sponsor has a health condition and would be unable to access appropriate treatment if forced to relocate;
- there is no permanent migration pathway in the applicant’s home country for the sponsor;
- the sponsor would be seriously adversely affected financially should they be forced to relocate to the applicant’s home country;
- Australian children will be adversely impacted; or
- the sponsor has significant family links to Australia, and has demonstrated caring or financial obligations towards them.
The above is not exhaustive however, and any other relevant details would be considered. You should consider if the above factors apply to you, and provide sufficient evidence in support of your claims.
What is the ‘one fails all fails’ criteria?
It is important to understand that the health criteria is often a ‘one fails all fails’ criteria. This means that if any member of the family unit (e.g., your spouse/de facto partner or children) do not meet the health requirement, no one can be granted the visa.
This can include circumstances even where a member of the family unit is not included in the visa application. There are limited exceptions to this, such as where it is considered ‘unreasonable’ for the health of a non-migrating family member to be considered.
Whether the ‘one fails all fails’ criteria applies differs between visa types, making it important to seek legal advice if you have concerns about meeting the health requirement.
Conclusion
The health criteria to be granted an Australian visa can be complex, and submitting evidence in favour of your health waiver request can be stressful. However, seeking professional advice can ensure you put forward the best possible case. If you need assistance preparing a health waiver request or have any other immigration related queries, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.
