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Public Interest Criterion (PIC) 4007 – the health waiver

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What is a Public Interest Criterion?

Australia’s migration legislation affords the Minister a discretion to grant, refuse to grant, or cancel a person’s visa.

There are a range of PICs, so how does the public interest apply to visa holders and applicants?

The public interest or ‘safety net’ discretion that the Minister may exercise is much broader than the requirements of the regulatory criteria.

Basically, the Minister has the ability to consider the ‘public interest’ in making a decision sits above all other decision-making powers – including by the Department and in some cases, the Tribunals.

It is said this discretion protects the public from a decision that may not be legally incorrect, but would be undesirable from a policy perspective.

What is Public Interest Criterion 4007 – the Health Waiver?

PIC 4007 is contained in Schedule 4 of the Migration Regulation 1994 and states:

(1)  The applicant:

(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

  • must undertake any medical assessment specified in the instrument; and
  • must be assessed by the person specified in the instrument;

                  unless a Medical Officer of the Commonwealth decides otherwise; and

(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

(a) is free from tuberculosis; and

  • is 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

(c) subject to subclause (2) –is free from a disease or condition in relation to which:

                  (i)  a person who has it would be likely to:

                                 (A)  require health care or community services; or

(B)  meet the medical criteria for the provision of a community    service;

                               during the period described in subclause (1A); and

                 (ii)  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;

regardless of whether the health care or community services will actually be used in connection with the applicant; and

(d)  if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment–has provided the undertaking.

      (1A) For subparagraph (1)(c)(i), the period is:

(a)  for an application for a permanent visa–the period commencing when the application is made; or

       (b)  for an application for a temporary visa:

            (i)  the period for which the Minister intends to grant the visa; or

 (ii)  if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph–the period commencing when the application is made.

      (1B) If:

      (a)  the applicant applies for a temporary visa; and

(b)  the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A) (b)(ii);

the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.

      (2)  The Minister may waive the requirements of paragraph (1)(c) if:

 (a)  the applicant satisfies all other criteria for the grant of the visa applied for; and

(b)  the Minister is satisfied that the granting of the visa would be unlikely to result in:

           (i)  undue cost to the Australian community; or

(ii)  undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

What visas does Public Interest Criterion 4007 apply to?

PIC 4007 only applies to certain classes of visas such as:

  • Partner Visas
  • Child Visas
  • Adoption Visas
  • Employer Nominated Scheme Visas (Temporary Transition Stream only)
  • Regional Sponsored Migration Scheme Visas (Temporary Transition Stream only)
  • Offshore Humanitarian Visas
  • Prospective Marriage Visas
  • Dependent Child Visas
  • Temporary Work (Skilled) (Subclass 457) Visa
  • Skilled Regional Visas
  • Business Innovation and Investment Visa (Permanent)

How does it work?

In simple terms when you apply for a visa the primary applicant, a partner and any family members must pass a health test to make sure they are free from:

  • Tuberculosis
  • any 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
  • any disease or medical condition which a person who has it would likely to require health care or community services in Australia, or 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:
    • 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.

What are significant costs?

The current policy states that costs are regarded as significant if they are in excess of $AUD 40,000.00

Significant costs are assessed:

  • for temporary visas applicants, by taking into account their period of stay in Australia; and
  • for permanent visa applicants, over a five year period, or three years for those aged 75 or older.

You will also not meet the health requirements if a Medical Officer of the Commonwealth (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. That is if it is likely to limit access of Australian citizens or permanent residents to health care and community services in short supply.

If the MOC assesses you as not meeting the health requirement the visa will be refused and you will then have to consider if you can get a health waiver.

It is also important to note if one member of the family fails all fail.

If you fail the health requirement you will be invited by the Department of Home Affairs (DoHA) to outline to them information to support the granting of a health waiver.

What is taking into consideration when exercising the Health Waiver?

The DoHA when it considers whether to exercise a health waiver pursuant to PIC 4007 will consider:

  • 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 the MOC
  • the skills and qualifications of the main visa applicant and the family members
  • any significant family ties to Australia;
  • if a refusal to exercise the health waiver will negatively impact Australian citizen children
  • if a refusal to exercise the health waiver will result in immediate family members having to live apart
  • if an Australian sponsor were forced to relocate, would it negatively impact their health
  • if the applicant has ties to Australian community and social groups
  • any other compassionate and/or compelling factors that warrant a Health Waiver being exercised

How can we help?

FC Lawyers expert team including accredited specialists in immigration law have acted for literally hundreds of clients in assisting them with health waivers.

Some of the areas we have assisted in are HIV infection issues, various cancers, minors, intellectual and functional impairment.

Contact our team today to discuss public interest criterion or any other visa issues. 

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