The Australian Migration Act (1958) and Regulations (1994) stipulate that most visa applicants need to meet Public Interest Criteria (PIC). The health related PICs (4005-4007) stipulate the health requirement that must be met before the grant of a visa.
To meet the health requirement to be granted a visa, a visa applicant’s immigration medical examination results must be assessed and they must be granted a health clearance. If the health clearance is a “Does Not Meet”, the applicant has not met the health requirement and a visa cannot be granted unless a health waiver is available and exercised.
Where PIC 4005 applies, if an applicant (or a non-migrating family member) fails to meet the health requirement for a visa, there is no provision for a health waiver to be considered.
A health waiver can only be exercised for visa applicants (and any non-migrating family members) for certain visas to which PIC 4007 applies. This includes:
Waiving the need to meet the health requirement may have significant implications for Australia’s health care and community services. Consequently, under policy, only officers who are at the EL1 level or above and delegated under Section 65 of the Act (s65) to grant or refuse visas may make a health waiver decision.
Section 65 delegates at lower than the EL1 level who are assessing a visa application that requires consideration of a health waivershould complete the relevant health waiver submission template and refer it to a s65 delegate at the EL1 level or above. Visa processing officers overseas without an appropriately delegated officer should refer the case to their supervising post to assign the visa application to an s65 delegate at the EL1 level or above.
Important: The EL1 or above s65 delegate who makes the decision on whether or not to exercise a PIC 4007 waiver must also make the decision to grant or to refuse to grant the visa to avoid split decision making.
PIC 4006A was a prescribed Schedule 2 criterion for the UC-457 Temporary Work (Skilled) visa only. It applied to both the main applicant and any dependent visa applicants. PIC 4006A still applies to pipeline subclass 457 cases pending finalisation only. For guidance on PIC 4006A, officers should refer to the relevant stack in Legend.
Note : UC-457 was repealed in March 2018 when the Temporary Skill Shortage (subclass 482) visa (known as TSS visa) was introduced. The TSS visa is subject to PIC 4007.
Important Note: No health waiver is available if the applicant has failed to meet health on TB, danger to the community, or other public health risk grounds – refer to PIC 4007(1)(a) and (b).
A health waiver can only be exercised in accordance with PIC 4007(2) if:
Note:
The MOC provides an opinion as to whether an applicant’s condition or disease would be likely to result in ‘significant’ health care and community service costs if a visa were to be granted.
Under its regulation 1.03 definition, community services includes the provision of an Australian social security benefit, allowance or pension. Under policy, it is also taken to include services such as supported accommodation, special education, home and community care.
When assessing ‘significant costs’, an applicant is assessed against the health requirement for:
Currently, the policy threshold for the level of costs to be regarded as significant is AUD 51,000, and the MOC will assess an applicant as not meeting the health requirement the potential costs over their proposed period of stay are above that figure.
Prejudice to Access is identified when the applicant’s medical condition would be likely to prejudice the access of Australian citizens and permanent residents to health care and community services that are currently in short supply. As at January 2018, and as advised by the Department of Health, this includes organ transplants (including bone marrow transplants), and dialysis.
Although ‘undue’ is not defined in migration law, the dictionary definition of undue is “unwarranted; excessive; too great”, and a broad range of discretionary considerations may be taken into account in determining whether costs or prejudice to access are ‘undue’.
Although ‘mitigate’ is not defined in migration law, the dictionary definition of mitigate is to “lessen” or “to make less severe”, and a broad range of discretionary considerations may be taken into account in determining whether an applicant has the capacity to ‘mitigate’ the potential costs identified.
A health waiver submission template, available on the internal Bordernet Health waivers page, must be prepared for all health waiverdecisions, and attached in the Health Assessment Portal (HAP).
The visa applicant or Migration Agent is required to complete Part A of the Health Waiver Submission, with Part B to be completed by the visa officer.
Important: Visa applicants must be provided with an opportunity to comment on the MOC opinion through an s57 notification prior toa health waiver submission being sent to the visa applicant or their Migration Agent. This is essential as a MOC opinion may subsequently change based on new medical information provided by the applicant. For further information refer to Migration Act s57 requirements- Notification Requirements.
HAP will indicate whether a referral to the Health Policy Section (health@homeaffairs.gov.au) for a recommendation is required before the delegate makes a health waiver decision. This will include:
Note: Cases where more than one applicant has failed to meet the health requirement, and the total costs identified are AUD 500 000 or more will also require referral to the Health Policy Section for a recommendation before the delegate makes a health waiver decision.
In cases where the estimated costs are less than AUD 500,000, and no Prejudice to Access has been identified, the s65 delegate can proceed to make a final decision on both the health waiver and the visa application, however, a recommendation may also be requested from Health Policy Section if the delegate needs further guidance to inform their decision.
Important: The Health Policy Section Director will only provide a recommendation. The final decision as to whether to exercise a health waiver rests with the s65 delegate.
If, however, a delegate does not agree with a recommendation from the Health Policy Director, the delegate should clearly document and record the information and considerations they are placing weight on in the HAP, and make a further request for a recommendation from the Health Policy Section Director before making a final decision. If the delegate ultimately decides to make a decision that is counter to the Health Policy recommendation, their reasoning should be clearly documented.
Regardless of whether or not a health waiver is exercised, all health waiver decisions must be fully documented and recorded in the Health Assessment Portal (HAP).
Decisions are reviewed regularly and reported to Senior Executive by the Health Policy section.
It should be noted that merely meeting the legislative criteria for the grant of a particular visa (for instance being in a genuine and continuing relationship for a Partner visa, or residing in a regional area for a Skilled (Regional Sponsored) visa) would not generally be considered as strongly compassionate or compelling circumstances, unless there are other factors which add weight to a favourable outcome.
Criteria which may be considered to be compassionate and compelling include (but are not limited too) where documentary evidence has been provided that:
Some visa applicants whose visa is refused due to a health waiver not being exercised can seek a review of the decision from the AAT.
Where the AAT remits the case on the basis the applicant meets PIC 4007(2) (that is, that a health waiver should be exercised on the basis that the health costs or prejudice to access are not considered ‘undue’), section 65 delegates are only required to record the health waiver outcome in HAP.
However, depending on the validity of the medicals, it may be necessary for the applicant to complete additional health examinations to rule out active TB. For further information on whether additional health examinations are required, refer to Review Cases .
If all health related requirements are met (AAT remit and there are no outstanding health examination requirements), the VPO can finalise the health waiver case in the HAP and proceed to grant the visa if all other requirements have been met.
When processing a visa in IRIS, VPOs are required to finalise the health waiver case in the HAP before proceeding to a visa grant. VPOs will need to finalise the health waiver case in HAP using the initial health waiver outcome, and then proceed to finalise the remitted health waiver case. This is vital to ensure the accuracy of health reports for health waiver cases and AAT remitted cases.
For processing assistance in finalising a remitted health waiver case, refer to Managing health waivers in the HAP .
