For almost all visa subclasses, applicants are required to satisfy the Public Interest Criteria (“PIC”) of Schedule 4 to the Migration Regulations 1994. The PIC deal with a wide range of factors, from imposing character requirements, to requiring provision of a valid travel document. Whilst many of these PIC concern moderately straightforward matters, one area of particular complexity relates to the imposition of health requirements. The health requirements are split between two (2) different criteria, being the 4005 and 4007 PIC. Depending on the subclass and stream for which you apply, one of these PIC is likely to apply.
Whilst substantially similar in their function, PIC 4005 and 4007 differ in crucial ways. Understanding these differences is critical in ascertaining the feasibility of your visa application. In any case, applicants suffering from major health concerns ought to obtain comprehensive legal advice from a migration lawyer prior to proceeding with their application.
Health Criteria for Australian Visas
Both PIC 4005 and 4007 aim to safeguard the interests of the Australian public in two (2) major ways:
- Preventing entry of persons subject to a condition or disease which poses a threat to public health or safety.
- Preventing entry of a person who requires treatment that may pose a costly financial burden upon Australia or impact the availability of such treatment to members of the Australian community.
In order to achieve these ends, both PIC provide for the following:
- Specifying when a visa applicant must undertake a medical examination and what kinds of tests are to be conducted therein.
- Prohibiting entry of persons:
- suffering from tuberculosis.
- suffering from conditions and diseases which pose a risk to the Australian community.
- Suffering from conditions which would be likely to result in:
- Significant financial costs to the Australian community; or
- Prejudice to access, by Australian citizens or permanent residents, to treatment.
- Providing a mechanism for medical officers to have applicants commit to undergoing follow-up assessments, if necessary.
The question of community risk, significant cost, and prejudice to access to treatment is a determination for the medical officer of the Commonwealth undertaking the assessment. The Department of Home Affairs supplies these officers with extensive guidelines for assessment of community health risks and treatment costs.
The crucial difference between the aforementioned PIC is found at the end of PIC 4007, which permits the department to waive part of the above conditions where:
- The applicant otherwise satisfies all other criteria for the visa applied for; and
- The department is satisfied that the applicant’s condition is unlikely to cause undue cost to the Australian community or prejudice community access to treatment.
This discretion permits the departmental decision maker to override the opinion of the commonwealth medical officer on the basis of any relevant factor, provided the relevant condition is not a risk to public health. By contrast, PIC 4005 leaves virtually no room to rebut the assessment and opinions of the medical officer.
Threats to Public Health
A core consideration under the applicable PIC is whether an applicant suffers from a condition or disease which places the Australian community at risk. Some of the most “high risk” conditions for which special arrangements are made include:
- Active tuberculosis
- Yellow fever
Active tuberculosis is, in all circumstances, considered grounds for visa refusal in almost all cases. Latent tuberculosis may render applicants subject to additional undertakings to facilitate health monitoring after an applicant’s arrival.
Further, additional requirements and procedures are imposed on applicants arriving from countries considered “high risk” for any of the aforementioned diseases. The Department of Home Affairs follows the advice of the World Health Organization in relation to identifying countries of concern.
The above is a non-exhaustive list, and medical officers will assess the health risks posed by applicants on a case-by-case basis.
“Significant Cost” and “Prejudice to Access”
Under both the aforementioned PIC, the assessment of the medical officer of the Commonwealth is central to the determination of the cost and availability of necessary treatment. Under policy, the key monetary threshold is $49,000, which is calculated over a duration prescribed by policy and dependent on the nature of the visa applied for and the health condition identified.
The time period over which the cost of treatment is calculated is as follows:
- For non-provisional temporary visas: the period of the temporary visa
- For permanent visas and provisional temporary visas.
- Applicants below 75 years of age: five (5) year period.
- Applicants at least 75 years of age: three (3) year period.
- Applicants with a permanent condition: ten (10) year period.
- Applicants with a condition likely to persist beyond five years: ten (10) year period.
Cost of treatment will be based on the professional assessment of the medical officer, guided by cost projections provided by the Department of Home Affairs.
After an adverse assessment, applicants may request a breakdown of costs as determined by the medical officer of the Commonwealth.
Prejudice to Access
The following procedures are deemed under policy to be in limited supply, and thus the need for these treatments by an applicant will likely fail the applicable health criteria:
- Organ or bone marrow transplant
Note that short-term visits may be approved for dialysis recipients where applicants are already on dialysis for no longer than a month and have made arrangements, in advance, including financing the costs of treatment.
The Department of Home Affairs provides extensive guidance to its medical officers regarding availability of various treatments and pharmaceuticals.
When PIC 4007 can be waived
Waiver of PIC 4007 can be granted in relation to adverse findings as to treatment costs or prejudice to access to treatment. No waiver can be sought in relation to active tuberculosis or other public health risks, however.
For non-humanitarian visas, consideration of a waiver request can concern a broad range of discretionary criteria, including:
- Factors mitigating prejudice to access
- Financial capacity of the applicant for mitigation of treatment costs
- Compelling and compassionate circumstances
- For transplant recipients
- The existence of a viable live donor who is related to the applicant
- Whether it is unlikely that the applicant will be placed on a transplant list
Applications for health waivers are extremely technical in nature, requiring an in-depth understanding of the migration scheme surrounding PIC 4007. It is imperative that applicants with health concerns who are subject to this criterion obtain comprehensive legal assistance prior to proceeding with an application.
Frequently Asked Questions
I was granted a temporary visa despite my illness. Does this mean my permanent visa application will also be unaffected by my condition or disease?
Both under the PIC and internal government policy, health criteria operate differently with respect to temporary and permanent visas. If you were fortunate enough to meet the health requirements for a temporary visa, there are no assurances as to your satisfaction of the same criteria in relation to your permanent visa. Further, variable validity periods of between 6 to 12 months may also apply to health clearances.
Policy proscribes circumstances whereby a prior health clearance may be reused for the purposes of a subsequent application. These directions are highly technical but will generally require a permanent visa applicant to obtain a clearance which is different in nature than that required for a temporary visa.
What if I give birth to a child in Australia who suffers from a health condition?
Under Section 78 of the Migration Act, a child born to a visa holder in Australia is taken to have been granted the same kind of visa as his or her parents. Health criteria will not impact the child until they are required to undergo a subsequent visa application.
No other concessions exist for children born to visa holders or applicants. Limited concessions exist for newborns in relation to the manner in which health assessments are conducted, but not for the health requirements themselves.
Are HIV and hepatitis “threats to public health?”
In most instances, HIV and Hepatitis will not be considered threats to public health under Department policy. Depending on the cost of treatment, these conditions may still result in failure of the applicable PIC on the grounds of treatment costs or limited availability of treatment.
The exception to the above involves migrants who plan to study or work within a health care environment. This includes working as or studying to become a dentist, doctor, nurse, or paramedic.
Of particular concern is the involvement of such persons in so-called “Exposure Prone Procedures” or “EPP,” as defined by the Communicable Disease Network of Australia. In essence, these procedures result in a greater risk of community exposure and transmission of blood-borne diseases.
Health industry affiliated applicant’s testing positive for such diseases may be required to supply a statement from their prospective employer or educational institution confirming that they will not be involved in EPP over the course of said employment or study.
What are the options for seriously or terminally ill applicants?
In cases of severe illness or injury, visa options are limited. Policy expressly supports refusal of visa applications in these circumstances, with no special concessions given. Applicants may however qualify for a Subclass 602 Medical Treatment visa depending on the circumstances.
What if my health deteriorates after my visa is granted?
There is no mechanism for the Department of Home Affairs to retrospectively fail a visa holder on PIC 4005 or 4007 after visa grant. The Department may however inform the visa holder of the consequences of their health condition on any subsequent visa application.
Note that some visas are subject to Condition 8527, which allows cancelation of visas held by persons suffering from tuberculosis. The Department cannot, however, require additional health checks after a visa is granted, even if subject to this condition.
A further mechanism for cancelation on health grounds includes Section 116(1)(e) of the Migration Act 1958, conferring a general power to cancel on the basis of risks to the health, safety or good order of the Australian community.
How are health criteria applied to applicants who are unlikely to be able to return home?
In most circumstances, a temporary visa applicant deemed likely to be incapable of departing Australia due to an extant medical condition will fail PIC 4005 or 4007. The exception to this rule concerns temporary visa applicants being assessed for an upfront permanent stay in Australia, though such circumstances are rare.
Is there any way to waive PIC 4005?
Unlike PIC 4007, there is no mechanism by which PIC 4005 may be waived.
Is receipt of government financial assistance factored into the cost assessment?
Potential eligibility for Australian government financial assistance can result in the costs of said assistance being incorporated into the health assessment.