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Health Waiver

Australian Immigration Health Waivers

Most applicants who have applied for a temporary or permanent visa are required to undertake health examinations. The factors that determine whether an applicant requires a health examination include country of passport, length of stay, purpose of stay and the type of visa that has been applied for.

To meet the health requirement to be granted a visa a visa applicant must undergo a health examination and be granted a health clearance.

If an applicant undergoes a health examination and does not meet the criteria for the clearance the visa cannot be granted unless a health waiver is available and exercised.

The health criteria and available waivers are stipulated in Schedule 4 of the Migration Regulations 1994 and are known as Public Interest Criteria (PIC’s).

Public Interest Criteria 4005 & 4007

A health waiver for Public Interest Criteria 4005 is not available however if compassionate and compelling circumstance exist

This PIC applies to most visas and sets the health requirement criteria which includes the applicant meeting the ‘significant cost’ and ‘prejudice to access’ requirements.

A health waiver for Public Interest Criteria 4005 is not available however immigration lawyers can sometimes challenge the Medical Officer of the Commonwealth’s assessment and argue that the health condition or illness does not fail PIC 4005 and the Medical Officer of the Commonwealth and made an error in their assessment.

This PIC applies to most visas and sets the health requirement criteria which includes the applicant meeting the ‘significant cost’ and ‘prejudice to access’ requirements.

Australian Immigration Health Waiver

What criteria must be met?

In summary both PIC4005 and PIC4007 require all applicants for a particular visa to:

  • Be free of tuberculosis; and
  • Be free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
  • Be free from a disease or condition that would be likely to require health care or community services, meet the criteria for the provision of a community service, result in a significant cost to the Australian community in the areas of health care and community services or prejudice the access of an Australian citizen or permanent resident to health care or community services.

Note: It is important to note the criteria still applies regardless of whether the health care or community services would actually be used by the applicant(s).

Schedule a Consultation with Ethos Migration Lawyers for Expert Immigration Advice and Assistance

Public Interest Criteria 4005 & Public Interest Criteria 4007

Certain visas require applicants to meet Public Interest Criterion 4005 and other visas require visa applicants to meet Public Interest Criterion 4005

Public Interest Criteria 4005

A health waiver for Public Interest Criteria 4005 is not available however immigration lawyers can sometimes challenge the Medical Officer of the Commonwealth’s assessment and argue that the health condition or illness does not fail PIC 4005 and the Medical Officer of the Commonwealth and made an error in their assessment.

This PIC applies to most visas and sets the health requirement criteria which includes the applicant meeting the ‘significant cost’ and ‘prejudice to access’ requirements.

Public Interest Criteria 4007

If you have failed to meet PIC 4007 a health waiver can be exercised by the Department of Home Affairs. A health waiver can only be exercised when all the following criteria are met

  • The visa applicant(s) satisfied all other criteria for the grant, and
  • The Department is satisfied that the granting of the visa would be unlikely to result in:
  1. Undue cost to the Australian community or
  2. Undue prejudice to the access to health care or community services of an Australian citizen or permanent resident

One Fails All Fail Criteria

All members of the family unit must satisfy the criteria to meet the health requirement. In practice this means that if any member of a family (partners, children) unit fails the health examination no family member can be granted a visa.

Health Waiver Criteria

When a submission for a health waiver is requested by an applicant the Department will take into account the following mitigating factors that may form the basis to achieve a successful health waiver:

  • an Australian citizen sponsor has been diagnosed with a health condition and would be unable to access appropriate treatment if forced to relocate.
  • there is no permanent migration pathway to the applicant’s home country (or another country that the couple have the legal right to reside in) available to the sponsor (for example, because same-sex migration to that country is not available).
  • the sponsor would be seriously adversely affected financially, such that they would be unable to subsist (maintain or support themselves at a minimal level) in the applicant’s home country due to a lack of language skills, family support and/or employment opportunities.
  • the sponsor holds/held a Protection or Refugee/Humanitarian visa and a decision not to waive would separate him/her from his/her spouse/children as he/she is unable to return to the country from which he/she fled and there is no third country option.
  • there is evidence of an adverse impact on Australian citizen minor children if a decision not to waive is made (for instance, the sponsor has provided evidence that he/she is prevented by the other parent from removing minor children from Australia).
  • the sponsor has significant family links to Australia and has demonstrated caring or financial obligations towards them.
  • Australia would miss out on a significant benefit that the applicant/sponsor could contribute to Australia’s business, economic, cultural or other development (for example, a specialised skill/business that is highly sought after in Australia) or are providing a valuable community service (for instance through their employment and/or volunteering activities).
  • the sponsor/family is already settled in a remote, rural or regional area.
  • the sponsor/applicant and/or other working family members in a non-Skilled visa application have occupational skills in high demand (refer to the Medium and Long-term Strategic Skills List (MLTSSL) of the Skilled Occupation List)
  • for Skilled visas, the applicant and/or other working family members have occupational skills that are found on the Department of Jobs and Small Business Skilled Shortage lists
  • if not on the MLTSSL or the Department of Jobs and Small Business Skilled Shortage lists, the applicant/sponsor has a unique skillset that is vital to their employer’s business, and/or there is evidence that the employer would suffer detriment if a health waiver was not exercised.
  • there are any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members

Further advice

The Public Interest Criteria around health requirements are incredibly complex areas of immigration law and immigration legal advice is highly recommended. The above is simply a very brief summary of the requirements and does not go into the depths of the criteria and its interpretation. Ethos Migration Lawyers have assisted applicants that have initially failed PIC4005 successfully obtain their visas and assisted applicants with successfully receiving a waiver of PIC 4007.

If you would like to discuss your matter with us please Schedule a Consultation or contact us for an individual assessment of your options.

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