To obtain a visa, applicants must typically pass a health examination and receive a health clearance. However, if an applicant fails to meet the health criteria, they may still have a chance through a health waiver, provided certain conditions are met.
Key Health Requirements
Regardless of whether you as a visa applicant intend to use Australian health services the Department must be satisfied that granting you the visa is unlikely to:
- result in a significant health care and community service cost to the Australian community or
- prevent Australian citizens or permanent residents from accessing health care or community services that are currently in short supply.
Understanding the Criteria
Two main Public Interest Criteria (PICs) govern health waivers: PIC 4005 and PIC 4007. It is important to note the PIC still applies regardless of whether the health care or community services would actually be used by the applicant(s).
Some visas require applicants to meet Public Interest Criteria (PIC) 4005, while others require PIC 4007.
Public Interest Criterion 4005:
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.
Whilst you can’t get a health waiver for PIC 4005, you can challenge the Medical Officer of the Commonwealth’s assessment. Challenging the ‘significant cost’ and/or ‘prejudice to access’ findings.
Public Interest Criterion 4007:
If you fail to meet PIC 4007, the Department of Home Affairs can grant a health waiver.
A health waiver can only be exercised when all the following criteria are met:
- You and any other applicants to the visa have 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.
Where a Health Waiver cannot be considered
Even if you are able to make a case under PIC 4007 the Department will not exercise a health waiver if you do not meet the health requirement because:
- you have active tuberculosis; or,
- your health condition may pose a danger to the Australian community or is a threat to public health.
One Fails All Fail
It is important to note that all members of the family unit must satisfy the PIC 4005 or 4007 criteria to meet the health requirement. In practice this means that if any member of a family unit be it a partner or child fails no family member can be granted a visa.
Invitation to Comment
In practise because, in most cases, you do not do your medical exams until after your visa is lodged and you do not need to apply for a health waiver. If you fail to meet the health requirement and a health waiver is available for your visa subclass, The Department will contact you to advise you of this and seek further information from you.
Generally, the Department will ask you to give more information about why a health waiver should be exercised and complete a formal submission telling them why they should exercise a health waiver.
Each health waiver is considered on a case-by-case basis. The Department will consider a range of factors when deciding on whether to exercise a health waiver, including:
- Whether an Australian citizen sponsor has a health condition and can’t get treatment if they move.
- whether there’s no way for the sponsor to move to the applicant’s home country or another country, they have a right to live in.
- whether the sponsor would suffer financially and can’t support themselves in the applicant’s home country due to language skills, family support, or job opportunities.
- Whether the sponsor has a Protection or Refugee/Humanitarian visa and can’t return to their country, separating them from their spouse/children.
- Whether denying the waiver would harm Australian citizen children, like if the other parent won’t let them leave Australia.
- Whether the sponsor has family ties in Australia and takes care of them financially or otherwise.
- Whether the applicant/sponsor could bring significant benefits to Australia’s business, economy, culture, or community service.
- Whether the sponsor/family already lives in a remote, rural, or regional area.
- Whether the applicant or other family members have job skills in high demand.
- Whether the applicant or other family members have job skills listed on certain shortage lists.
- Whether the applicant/sponsor has a unique skill that’s crucial to their employer, and the employer would suffer without it.
- Whether there are any other strong/compelling reasons, like where the applicant/sponsor’s family lives or their situation.
Seeking Professional Advice
Navigating health waivers and requirements can be complex. It’s advisable to seek immigration legal advice for a thorough understanding of your options.
Stone Group Lawyers have a track record of helping applicants secure visas and waivers successfully. If you need assistance contact Stone Group Lawyers today to book an initial consultation. With the right support, you can navigate these complexities and embark on your Australian immigration journey with confidence.
The above article published by Stone Group Lawyers is intended as general information only and is not legal advice on any subject matter. By viewing the above article, the reader understands there is no solicitor-client relationship between the reader and the article published. The above article should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Stone Group Lawyers on any legal queries concerning a specific situation.