A health waiver is available for some visas when the health requirement is not met

The visa health requirement can defeat an otherwise strong application, and many people only discover it after a medical examination flags a condition. Some visas allow a health waiver and some do not, and the difference is decided by which Public Interest Criterion your visa subclass requires. The sections below cover how the health requirement works, when a waiver is available, and what to do if a health assessment puts your grant at risk.

What the visa health requirement is

Under section 65 of the Migration Act 1958, a visa can only be granted if the decision-maker is satisfied that all the criteria for that visa are met. For most visas, one of those criteria is a health Public Interest Criterion set out in Schedule 4 to the Migration Regulations 1994. The two that matter most are Public Interest Criterion 4005 and Public Interest Criterion 4007.

Both criteria require that you, and each family member included in your application, are free from a health condition that would be likely to result in a significant cost to the Australian community, or to prejudice the access of Australian citizens and permanent residents to health care or community services in short supply. A Medical Officer of the Commonwealth forms the opinion on this, based on your medical examinations. The assessment looks at projected cost and demand on services rather than at how well you feel, so a person can fail it without being unwell.

The difference between the two criteria is the waiver. PIC 4005 contains no waiver power, while PIC 4007 is identical in substance but adds a discretion to waive the requirement. Which one applies is fixed by your visa subclass rather than by your circumstances.

The “one fails, all fails” rule

The health requirement applies to every person included in the application. It can also apply to certain family members who are not migrating, described in the regulations as members of the family unit who are not applicants. If any one of these people does not meet the requirement, the whole application can be refused. A healthy primary applicant can be refused because a dependent child has a condition that the Medical Officer of the Commonwealth assesses as a significant cost.

A single medical result can therefore put an entire family’s plans at risk, which is what makes the waiver, where it is available, so important.

The significant cost threshold, and why the figure moves

When the Medical Officer of the Commonwealth assesses a condition, the estimated cost of health care and community services is compared against a set dollar amount known as the significant cost threshold. A condition assessed above that amount is treated as a significant cost, which causes the health criterion to fail.

We do not state the current threshold figure here because it is set administratively and changes. Confirm the current amount against the Department of Home Affairs published guidance on the health requirement at immi.homeaffairs.gov.au before you rely on it. The assessment usually projects costs over a defined period, and for some permanent conditions it is calculated across a longer horizon, which can push the estimate above the threshold even when the annual cost is modest.

When a health waiver is available

A health waiver is available only if your visa subclass requires PIC 4007, because only that criterion contains the discretion to waive. Broadly, the visas that use PIC 4007 include partner visas, the Employer Nomination Scheme (subclass 186), a number of skilled and regional subclasses, and refugee and humanitarian visas. Visas that require PIC 4005, including many temporary and points-tested pathways, do not allow a waiver at all. Even where PIC 4007 applies, the waiver cannot be exercised where the condition is active tuberculosis or a threat to public health.

If your visa uses PIC 4007, the decision-maker may waive the health requirement if satisfied that granting the visa would be unlikely to result in undue cost to the Australian community, or undue prejudice to the access of Australians to health care or community services. In deciding this, the decision-maker weighs a range of considerations, which commonly include:

The estimated cost and care needs identified by the Medical Officer of the Commonwealth, any mitigating factors you put forward, your ties to Australia and your capacity to contribute, and the compassionate and compelling features of your case. A signed health undertaking, in which you agree to consult a health authority and follow a treatment plan after arrival, can also form part of the picture.

Two points follow. First, because the waiver is discretionary, showing that you only narrowly exceed the threshold is insufficient. You must build a positive case for why the community cost or prejudice is not “undue” in your circumstances. Second, a discretionary decision of this kind is difficult to overturn on judicial review. A court reviewing such a decision asks whether it was lawful rather than substituting its own view, so the discretion is wide and the real work is done at the primary and merits-review stages.

What to do if a health condition is flagged

If your examinations identify a condition that may fail the requirement, you are usually given a chance to respond before a decision is made. This is your opportunity, and it is often the only one that matters.

Provide detailed, current medical evidence from treating specialists that addresses the care your condition requires rather than the worst case the projection assumes. Where the visa uses PIC 4007, you do not need to apply for the waiver: the Department of Home Affairs states that, if you fail to meet the health requirement and a waiver is available for your subclass, your visa processing officer will contact you. Use that contact to put in a focused waiver submission that engages directly with cost and prejudice, and gathers evidence of your ties to Australia, your ability to meet your own health costs where relevant, and any compassionate factors. An assertion of good health does not answer the concern. The assessment is about projected cost and demand, so the evidence has to speak to those questions.

If the visa uses PIC 4005 and there is no waiver, the strategic focus shifts. It may be necessary to consider whether a different subclass that uses PIC 4007 is open to you, because that is the only route to a discretion at all.

Time also matters. If a refusal is made and merits review is available, the deadline to apply to the Administrative Review Tribunal is strict and cannot be extended. A statutory time limit of this kind is jurisdictional, as the Federal Court confirmed in Khabra v Minister for Immigration and Border Protection [2015] FCA 1405, so a missed deadline ends the review right regardless of how sympathetic the case is. Diarise the date on the decision record and act well before it.

Where this leaves you

The health requirement carries real weight, and whether a waiver exists is decided by your visa choice before you ever sit a medical examination. If you know a family member has a health condition, factor the requirement into your subclass strategy from the outset rather than after a decision has issued.

Visa Plan Lawyers advises applicants across employer sponsored, skilled and partner pathways on health requirement risk, waiver submissions, and review of health-based refusals. If a health condition is affecting your application, speak with our team about the options that fit your subclass. You can read more about our work on skilled visas, employer sponsored visas and partner visas, then contact us to discuss your circumstances.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.