Health Requirements – Health Waivers
There is little point in meeting specific visa criteria unless you first consider the applicable health requirement and whether any health waiver is available, if the health criteria is not satisfied.
To meet the health requirement, Australian visa applicants must do two things:
Firstly, the visa applicant must complete any requested immigration health examinations.
Secondly, the visa applicant must not be assessed by a Medical Officer of the Commonwealth (“MOC”) as having either: active Tuberculosis (TB); or a condition that may result in them being a threat to public health or a danger to the community; or
a condition that is likely to result in a significant cost to the Australian community in the areas of health care and community services.
If your health condition falls into any of these three categories, then you’ll need to explore whether an opportunity to seek a health waiver is open to you.
Meaning of “Significant Cost”
Significant Cost is one which is likely to require health care and community services which are estimated to cost more than the significant cost threshold of AUD $40 000; or is a condition that would prejudice the access of Australian citizens or permanent residents to services that are considered to be in short supply such as dialysis or organ transplants; or both.
A MOC may request that an applicant sign an undertaking in order to meet the health requirement. For example, you may need to undertake to rock up for medicals at regular intervals.
Visas For Which A Health Waiver Must Be Considered
For a list of visas for which a health waiver must be considered, refer to the Border website Visas that have a health waiver provision page.
A health waiver can be exercised in accordance with PIC 4007(2) if the visa applicant (or non-migrating family member) has failed to meet the health requirement. This is because, in accordance with PIC 4007(1)(c), a MOC has assessed them as having a disease or condition that is (a) likely to result in significant health care and community service costs; or (b) prejudice the access of Australian citizens or permanent residents to such services;
and (c) visa applicant(s) satisfies all other criteria for the grant of the visa; and (d) the visa decision maker is satisfied that the granting of the visa would be unlikely to result in (e) undue cost to the Australian community; or (f) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
Meaning of “undue”
The courts have indicated that a broad range of discretionary considerations can be taken into account in determining whether costs or prejudice to access are “undue”. Discretionary considerations may include mitigation of costs or services or consideration of compelling and compassionate circumstances. Close family links to Australia and reasons why the family would find it difficult to return to their home country, or both, may be relevant.
Non-migrating members of the family unit
Thinking not to include a person with a health condition in any family application as a non-migration partner? You’ll need to think this through carefully.
If the person who has failed to meet the health requirement is a non-migrating family unit member, you’ll need to detail the arrangements in place for the person’s care and welfare and the likelihood of their future migration.
If it is assessed that it is very unlikely or impossible that the non-migrating family unit member will ever migrate to Australia, this may add weight to arguments in favour of exercising the waiver.
If, however, the care arrangements are of a recent nature or the arrangements may not be appropriate for the long-term (for example, very young child/children left in the care of elderly grandparents), it is open to the officer to assess that it is likely that the child/children will ultimately seek to migrate. If so, an assessment must be made that considers all health waiver aspects as if the non-migrating family member did migrate, that is (a) how the waiver applicant and/or their family could migrate costs, care and/or prejudice to access and (b) the strength and details of any compassionate and compelling circumstances.
All visas have some health requirement and not all visas have a health waiver available.
It is often the case that if one member of a family unit has a health condition and fails the health requirement, all others will fail unless a waiver is available and exercised in the applicant’s favour.