Health Waivers and the Health Criteria (PIC 4005 & 4007)
Australia strictly screens applicants applying for temporary and permanent visas for health conditions prior to issuing visas. This is a policy objective, aimed at ensuring that current Australian Citizens and Permanent Residents are not unduly affected by health related costs or issues with access to Australian healthcare services by those migrating to Australia. The health assessments are also used to screen for infectious diseases which may present a risk to the Australian public. The health criteria are enshrined in public interest criteria 4005 and 4007 (PIC 4005 & 4007) and are applicable to nearly all temporary and permanent visas.
Before lodging a visa application, an applicant should be aware that the health criteria is a ‘one fails all fail’ criteria and that this applies to nearly all visa subclasses. This means that if a secondary applicant (your spouse/de-facto partner or children) fail the health criteria, no one can be granted the visa. The criteria generally needs to be satisfied by all ‘members of the family unit’, regardless of whether they are included in the application or not. The only exception is where the Department has assessed that it would be unreasonable for the non-migrating ‘member of the family unit’ to do so.
The Cost Threshold and Prejudice to Access
The potential health costs for an applicant will be assessed under the ‘hypothetical person’ test outlined in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs 148 FCR 182 . This means that the Medical Officer of the Commonwealth will assess the costs of the applicant’s condition against a hypothetical person with the same form and level of the applicant’s condition. The hypothetical person test ensures that it becomes irrelevant whether the applicant would or would not use that service or medication in Australia, would be able to source the medication from cheaper outside Australia or is covered under comprehensive health insurance etc.
Departmental policy has set the current ‘significant cost’ threshold at $49,000 in assessed medical costs. These medical costs will be measured against different time periods depending on the visa applied for. For temporary visas, your costs will be assessed against the lifespan of the visa. As an example, if you are granted a 485 visa for 2 years and are assessed to incur $15,000 in likely medical costs per year, you will pass the significant cost threshold. If you are granted a 485 visa for 4 years with the same likely medical costs, you will fail the significant cost threshold.
Permanent and provisional visa applicants are assessed under different time frames. For applicants aged less than 75 years; a five year period and for applicants aged 75 years or over; a three year period. Where the condition is permanent and the course of the disease is relatively predictable, or the disease results in a reduced life expectancy then a maximum 10 year period. This 10 year period represents a serious policy easing, given that prior to the 01st of July 2019, applicants were assessed against the remainder of their expectant life. If you have been refused a visa in the past on the grounds of failing to meet the health criteria, reach out as there may now be options available to you.
The health criteria will also be failed where the applicant has a condition which would be likely to prejudice the access of Australians to health care or community services. Currently, under policy this is limited to conditions that may require organ transplant or dialysis.
Failing to meet either the cost threshold or the prejudice to access requirement will result in failing the health criteria. Your options moving forward will depend on the visa applied for, and the condition itself.
Is a Waiver Available?
Countervailing arguments can first be made at the health waiver stage. Prior to making a decision on the visa, the Department will give the applicant a time frame in which the applicant may argue that despite having a condition that will be of significant cost, or prejudice the access of Australian citizens to services, the applicant will not cause undue cost to the Australian public.
Not every applicant will have the capacity to lodge a health waiver. For example if you have applied for a visa and PIC 4005 applies, you will not be able to lodge a health waiver. This is also true if you were diagnosed with Tuberculosis or an infectious disease which presents as a danger to the community. Applicants who have applied for a visa, to which PIC 4007 applied, can lodge a health waiver.
What will the Department assess in a Health Waiver?
The Department will looks at a large range of factors in assessing whether a medical condition will cause undue costs. They will also assess whether the applicant has the capacity to mitigate potential costs and whether there are other overarching compelling or compassionate circumstances that should be taken into consideration. There are a number of factors that Departmental delegates can take into consideration under internal Department policy. If you have discussed a known health issue with an Agent prior to lodging the visa application, you should be well positioned to raise these arguments with the Department.
The waiver and visa were refused.
If your visa application was refused despite submitting a health waiver, there is still the opportunity to appeal a decision to the Administrative Appeals Tribunal. Generally speaking, you will have 21 days to appeal a decision to the tribunal. If you have lodged your own health waiver and received a refusal, you should make contact very quickly with a Registered Migration Agent or Lawyer. They can help assess your prospects at appeal and guide you through this complex process.
How We Can Help
These are just a few of the issues that our Registered Migration Agents can assist with:
- Providing advice on the likely outcome of lodging a visa when there are known health conditions.
- Drafting compelling submissions to address the health waiver
- Assisting with appealing a decision by the Department of Home Affairs to refuse a visa application.
Our Registered Migration Agents can analyse your circumstances, identify any areas of risk and discuss the most appropriate strategy to meet your goals. They can also assist you in many different ways. For example – full service from preparation of evidence to visa decision, a consultation on a specific point of concern or a review before lodgement for peace of mind.