For the majority of permanent Australian Visas, as well as some temporary visas, the health status of a visa applicant(s) is a relevant factor and certain “Public Interest Criterion” (PIC), including PIC 4005, PIC 4006A and PIC 4007, will apply as a criterion to the grant of the visa. This basically means that an applicant (and any dependant’s included on the applicant’s application), must pass a health test to be granted the visa they have applied for.
The Health Criterion
As part of the visa application process, an applicant(s) will have their health condition assessed by a Medical Officer of the Commonwealth (MOC). To pass the health exam, the MOC who assess an applicant’s health must certify that the applicant(s) is free from:
2. a disease or medical 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
3. a disease or medical condition which a person who has it would likely to:
a. require health care or community services in Australia; or
b. meet the medical criteria for the provision of a community service in Australia,
and the provision of the health care or community services would be likely to:
a. result in a significant cost to the Australian community in the areas of health care and community services; or
b. prejudice the access of an Australian citizen or permanent resident to health care or community services.
The policy threshold for the level of costs regarded as significant is currently AUD$40 000.
Significant costs are assessed:
1. for temporary visas applicants, by taking into account their period of stay in Australia; and
2. for permanent visa applicants, over a five year period, or three years for those aged 75 or older.
As outlined above, you will also not meet the health requirement if a MOC determines that your condition is likely to prejudice the access of Australian citizens or permanent residents to health care and community services in short supply. In other words, if your condition is likely to limit access of Australian citizens or permanent residents to health care and community services in short supply, then you will not meet the health requirement.
Common Reasons for Refusal on Health Grounds
No diseases or health conditions automatically result in a failure to meet the health requirement on significant cost grounds. This is because the likely costs will depend on the form and severity of the condition.
However, the five most common diseases that permanent visa applicants who have failed the health requirement have been identified with are:
1. intellectual impairment;
2. HIV infection;
3. functional impairment;
4. renal disease or failure; and
If a MOC assesses you as unable to meet the health requirement, your visa application will be refused unless a “Health Waiver” is available and exercised.
A Health Waiver may be considered where you satisfy the Department of Immigration and Border Protection that the granting of the visa would be unlikely to result in undue costs or prejudice to access of an Australian citizen or permanent resident to health care or community services. These waivers are referred to as a “PIC 4007 Health Waiver”.
The Health Waiver applies in circumstances where it is in the best interests of the Australian community to waive the health criteria.
A Health Waiver is only available to be considered for applicants of certain visa subclasses, including, amongst others:
1. Partner Visas;
2. Child Visas;
3. Adoption Visas;
4. Employer Nominated Scheme Visas (Temporary Transition Stream only);
5. Regional Sponsored Migration Scheme Visas (Temporary Transition Stream only);
6. Offshore Humanitarian Visas;
7. Prospective Marriage Visas;
8. Dependent Child Visas;
9. Temporary Work (Skilled) (Subclass 457) Visa;
10. Skilled Regional Visas; and
11. Business Innovation and Investment Visa (Permanent)
There is a Health Waiver available to applicants for other visas in limited circumstances.
No Health Waiver is available where you have been found to have active tuberculosis, or another condition considered to be a threat to public health in Australia.
When deciding whether to exercise a Health Waiver, the DIBP will take into account the following mitigating factors:
1. the extent to which the main visa applicant and/or their family may be able to mitigate potential costs/prejudice to access issues identified by an MOC;
2. the skills and qualifications of the main visa applicant and their migrating family members, for example occupation skills, qualifications, English language skills, work history and/or future employment prospects;
3. whether the applicant has significant family links in Australia;
4. whether a failure to exercise the health waiver will negatively impact Australian citizen children;
5. whether a failure to exercise the health waiver will result in immediate family members living apart;
6. whether if any Australian sponsor were forced to relocate it would negatively impact their health;
7. whether the applicant has ties to Australian community and social groups; and
8. any other compassionate and/or compelling factors that warrant a Health Waiver being exercised.
Invitation to Comment
You do not need to apply for a Health Waiver. If you are eligible to be considered for a Health Waiver, the DIBP we will send you an “Invitation to Comment” advising that you (or your dependants) have failed to meet the health requirement and that a Health Waiver is going to be considered. The Invitation to Comment will invite you to put forward claims and information in support of a Health Waiver being exercised.
Once your response has been received, the DIBP will then assess:
1. your ability and the ability of any of your supporters to mitigate the potential costs and use of health care and community services;
2. any compassionate and compelling circumstances that apply to you; and
3. any other mitigating factors would support a health waiver being exercised in your case.
It is also worth noting that the refusal of a visa application on health grounds can be appealed to the Administrative Appeals Tribunal (AAT).
If you have been issued an Invitation to Comment in relation to a Health Waiver, or have been refused a visa on health grounds, you should contact us immediately so we can assist you in formulating your response to the Invitation to Comment or prepare your application for review to the AAT.
We offer all our prospective clients an initial meeting, during which we will thoroughly explain the law surrounding this area of the law to you and inform you of the process moving forward.
To organize a initial consultation with us, please contact one of our experienced immigration lawyers on (02) 9590 3987.