Overview of the health waiver provisions available under Public Interest Criterion 4007 (PIC 4007) as it applies to visas applications made in Australia under either the Employer Nomination Scheme (ENS) or the Regional Sponsored Migration Scheme (RSMS). Both these visa schemes allow for the grant of a permanent Australian visa and are subject to Australia’s health criteria regime.
Note: The health criterion also applies to applicants for temporary or provisional visas such as provisional business skills visas that lead to eligibility for a permanent visa.
Health requirement
There are certain eligibility criteria that must first be met before an Australian visa will be granted. These eligibility criteria are based on requirements prescribed under the Migration Act 1994 (the Act) and Migration Regulations (the Regulations). They include criteria that relate to an applicant’s health.
Where the health status of a visa applicant is considered relevant to the grant of the visa, Public Interest Criteria (PIC) 4005, 4006A or 4007 will apply as a criterion for the grant of the visa. These health PIC are designed to:
- protect the Australian community from public health risks;
- contain public expenditure on health care and community services; and
- safeguard Australians' access to health services in short supply.
Importantly, under the Employer Nomination & Regional Sponsored Migration Schemes, heath requirements are not only imposed on the visa applicant, but also on all members of the applicant’s family unit.
This means that if visa under these visa schemes, if a visa applicant or a member of their family unit cannot satisfy the health requirement outlined under Public Interest Criteria 4007 (PIC 4007), the application will fail. This is the case regardless of whether or not the family member is a visa applicant and/or intends to join an applicant in Australia. The practical effect of this is that ‘if one fails, all fail.’
Health Waiver - Public Interest Criteria (PIC) 4007
PIC 4007 incorporates the standard health requirement set out under PIC 4005, which is the strictest of the health criteria because it does not allow for any waiver of the health requirement that must be meet by the visa applicant and all members of their family unit.
However, unlike PIC 4005, PIC 4007 allows the health requirements to be waived in particular circumstances and is available to applicants (and any non-migrating family members).
The exemption applies in circumstances where it is in the best interest of the Australian community to waive the health criteria.
Accordingly, if an ENS or RSMS visa applicant (or any non-migrating family member) fails to meet the health requirements, a departmental officer has discretion to waive or not waive aspects of the health requirement.
Note: There is no obligation to waive the health requirements just because a waiver application has been made.
A health waiver application can only be considered if the applicant resides or proposes to reside in a 'participating state or territory' that is an Australian state or territory designated by the Minister for Immigration.
If the health waiver is exercised, this does not mean that the visa applicant is exempt from all of the health criteria specified in the Migration Regulations. Visa applicants must still undertake the required medical examinations and be assessed against the health requirements.
This is also the case for non-migrating dependents unless they are not required to undertake health assessments because the visa decision maker is satisfied that it would be unreasonable for them to do so.
Note: A health waiver may also be exercised in respect of other permanent visas to which Public Interest Criteria (PIC) 4007 applies e.g. offshore humanitarian visas and other non-humanitarian visas (including partner and child visas, and certain 'second stage' skilled visas).
When Can a Visa Decision Maker Exercise a Health Waiver in a Skilled Visa Case?
A health waiver may be exercised in respect of Employer Nomination Scheme and Regional Sponsored Migration scheme visa applications if:
- the visa applicant (or non-migrating dependent) has failed to meet the health requirement because a Medical Officer of the Commonwealth ('MOC') has assessed them as having a disease or condition that is likely to:
- result in significant health care and community services costs; or
- prejudice the access of Australian citizens or permanent residents to services
- the visa applicant(s) satisfies all other criteria for the grant of the visa applied for
- the delegate is satisfied that the granting of the visa would be likely to result in:
- undue cost to the Australian community; or
- undue prejudice to the access to health care or community services of an Australian citizens or permanent resident.
Where a health waiver is available, it must be considered by the visa decision maker.
In considering the above factors, the term 'undue' is not defined in Australia’s migration legislation. Nevertheless, in deciding whether or not to exercise the health waiver, case officers are required to note the dictionary definition of undue as being 'unwarranted, excessive; too great.' They are also required to consider that Australian courts have indicated that a broad range of discretionary consideration can be taken into account in determining whether costs or prejudice to access are 'undue', which may include consideration of compelling or compassionate circumstances.
A broad range of discretionary considerations to take into account in determining whether the granting of the visa would be likely to result in:
- undue cost to the Australian community; or
- undue prejudice to the access to heal care or community services of an Australian citizen or permanent resident.
Each health waiver case is considered on its merits applying the relevant policy guidelines and procedures specific to the visa subclass applied for. This is the case even though the same public interest criterion applies, (PIC 4007) to skilled visa waiver applications. Case officers will also take into consideration the purpose of the visa to which the health waiver attaches.
Important: A health waiver is not available in circumstances where the applicant has failed to meet the health requirement on tuberculosis, or other public health risk grounds.
Also, the fact that the applicant satisfies all other criteria for the grant of the visa applied for does not constitute sufficient basis to waive the need to meet the health requirement.
Factors relevant to consideration of a skilled health waiver
Australian migration policy provides that the following factors should be given significant weight in assessing a skilled health waiver case:
- the view of the participating state/territory (if it has been sought);
- the skills and qualifications of the main visa applicant and their migrating family members, for example the occupation skills, qualifications, English language skills, work history and/or future employment prospects;
- whether the nominated occupation is one in critical demand or severe shortage, Australia-wide and in the jurisdiction/geographical area where they propose to reside;
- whether the family has already settled or proposes to settle in a remote, rural or regional area;
- whether the family’s case obligation constrains their earning capacity or ability to deploy their skills or practise their trade/profession/occupation in the economy;
- the extent to which the main visa applicant and/or their family may be able to mitigate potential costs/prejudice to access issues identified by an MOC when assessing the health waiver applicant against the health requirement;
- all other relevant factors when making a health waiver decision, including any other compelling and/or compassionate circumstances that warrant a waiver being exercised (for example, close family links to Australia, and/or reasons why the family would find it difficult to return to their home countries.
Other factors taken into account in respect of non-migrating members of the family unit
Case officers will also consider what arrangements are (and were) in place for the care and welfare of non-migrating family members who have failed to meet the health criteria, and the likelihood of their future migration to Australia.
What role does a participating state/territory play in the skilled health waiver scheme?
Where you have failed to satisfy the health requirement, an MOC will estimate the potential health and community care costs associated with the condition and/or disease that caused you to fail the health requirement.
If the potential cost is quantified as exceeding AUD $100,000 and/or the MOC has identified substantial or extensive prejudice-of-access issues, the case officer must seek the view of the relevant Australian state/territory.
After the participating state/territory provides its view, the final decision on whether to exercise the waiver is made by the case officer. Notwithstanding the view of states/territories and the significant weight accorded to it, ultimately the decision of whether or not to waive the health requirement resides with the case officer.
If the state/territory opinion does not support the exercise of a health waiver, you will be notified of that opinion and afforded an opportunity to comment.
If the potential cost of medical care is assessed at less than $100,000 during the period of you residence in Australia, then the health waiver may be considered by the Department of Immigration without referral to the state/territory.
If the costs involved are AUD $200,000 or more, and/or the MOC has identified that substantial or extensive prejudice to access is likely to result if a visa were to be granted, a recommendation from the Director, Health Strategies and Coordination Section will be required before a waiver decision is made. Note: this recommendation is also not binding on the case officer.
As part of the review process, the case officer is first required to seek your consent before sending the following documentation to the relevant state/territory government agency for its opinion:
- completed privacy consent form
- skilled health waiver submission
- page one of the health waiver cover sheet completed by the visa processing area
- a copy of the MOC’s opinion and health waiver costing advice
- any other supporting documentation provided by you
- a copy of the skilled health waiver state opinion.
The completed skilled health waiver submission and cover sheet, as well as the MOC opinion, waiver costing advice, and the state/territory view and any other relevant supporting documentation will then be forwarded to the Health Strategies Coordination Section for its recommendation.
Reviewing health waiver decisions
An application for review may be made to the Migration Review Tribunal (MRT). The following decisions may be open to challenge:
- an opinion by the MOC that there is significant health care cost or prejudice-to-access health care;or
- a decision bythe Immigration Department not to exercise the waiver.
In some instances a decision to refuse a health waiver application may involve a combination of the above.
---------------------------------------------------------------------------------------------------
Related 457 to Permanent Residency Articles
457 To Permanent Residency | FAQ's
Regional Certifying Bodies | Regional Sponsored Migration (RSMS)
