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 in order to be granted a visa, an applicant may be required undertake 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 health waivers are stipulated in Schedule 4 of the Migration Regulations 1994 and are known as Public Interest Criteria (PIC’s).
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 that the Medical Officer of the Commonwealth 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:
- Undue cost to the Australian community or
- Undue prejudice to the access to health care or community services of an Australian citizen or permanent resident
What Criteria Must Be Met?
In summary, both PIC 4005 and PIC 4007 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.
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).
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 consider 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 on Health Waivers & Requirements
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 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.
Health Waivers Frequently Asked Questions
If an applicant undergoes a health examination for their visa 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 the Public Interest Criteria (PIC’s).
The Public Interest Criteria around health requirements are incredibly complex areas of immigration law and therefore we would need to undertake a consultation to be able to assess the current circumstances and give an accurate guide to the fees associated with the waiver.
An applicant will fail the health requirement if they are assessed to be the holder of a disease or condition that may result in the applicant being a threat to public health in Australia or a danger to the Australian community, or would be likely to require health care or community services which would result in a significant cost to the Australian community or prejudice the access of an Australian citizen or permanent resident to those services or care.
Prejudice to access to care is when the applicant’s medical condition would be likely to disadvantage current Australian citizens or permanent residents from obtaining that same care or services as they are deemed to be in short supply.
The health waiver provision is the law associated with the health requirements for visa applicants to be granted a visa.
A Health Waiver may be exercised when the applicant does not fulfil the health requirement criteria attached to their visa.
There is no set list of compelling and compassionate circumstances and they are given their ordinary dictionary meaning. The Department assess ‘compelling and compassionate’ circumstances on a case by case basis.