Health Waivers – Australian Visas

In these distressing times with the global pandemic health satisfying Australia’s health requirements for visas can cause considerable stress to applicants and their families.

If you are applying for a permanent residence visa and also some temporary visas you will be required to undergo a health examination and obtain a health clearance, in order to be granted the visa.

Public Interest Criteria 4007 (health requirements) states:

If you or any member of your family applying for the visa does pass the health examination, a visa cannot be granted unless a Health Waiver is available and exercised.

An applicant will fail the health requirement if their health condition:

• will result in “significant” health care and community services costs to the Australian government, and/or
• will prejudice Australian citizens’ or Australian Permanent residents’ access to health care.

An applicant’s health condition will be assessed by the Medical Officer of the Commonwealth (MOC) by giving consideration to what are “significant” costs of medical care.

The costs that are considered include:

• medication.
• community services.
• medical care.
• some social security payments.

It is important to know what period of time does the MOC take into account which is referred to as the “Cost Assessment Period” (COP):

• applicants over 75 years of age – 3 years
• applicants with reasonably predictable (beyond a five year period) permanent condition – 10 years
• applicants with reasonably predictable (>65% likelihood) reduced life expectancy – A maximum of 10 years if greater than five years
• all other permanent and provisional applicants – 5 years

The threshold for what is “significant” is $49,000.00.

The 5 most conditions most identified conditions affecting permanent visa applicants who have failed the health requirement are:

• intellectual impairment
• HIV infection
• functional impairment
• renal disease or failure
• cancer

However, you can apply for a waiver of PIC 4007 and it can be waived by the Department if it considers you have satisfied all the other requirements of the relevant visa and:

• the impact on any Australian citizen children and the extent of any family ties
• the effect on an applicant’s health if forced to relocate
• the benefits the affected applicant and/or their family members can bring to the Australian community and the economy more generally by allowing the waiver
• the applicant and/or any sponsor’s ability to offset the potential costs of treatment

In Bui v MIMA (1999) 85 FCR 134 the Full Federal Court has held that ‘over and above’ the consideration of the likelihood that cost, or prejudice will be “undue” there is the discretionary element of the ministerial waiver. The discretion of compassionate circumstances or the more widely expressed “compelling circumstances” may properly have a part to play.

The Department should take into account any compelling and compassionate circumstances of the applicants, such as close family links to Australia and/or reasons why the family would find it difficult to return to their home country.

Applying for a health waiver can be a very distressing and it requires significant evidence to support the application for a waiver. At FC Lawyers, we have acted for numerous clients in relation to health waivers.

Contact our expert team today to discuss your health waivers and immigration needs.