What is a Health Waiver?
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:
Delegation to waive
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 (pipeline UC-457 cases only)
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Note : UC-457 was repealed in March 2018 when the Temporary Skill Shortage (subclass 482) visa (known as TSS visa) was introduced.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.
When can a waiver be exercised
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:
- the visa applicant (or non-migrating family member) has failed to meet the health requirement, because, in accordance with PIC4007(1)(c), a MOC has assessed them as having a disease or condition that is:
- likely to result in significant health care and community service costs or
- prejudice the access of Australian citizens or permanent residents to such services
- the visa applicant(s) satisfies all other criteria for the grant of the visa, and
- the s65 delegate is satisfied that the granting of the visa would be unlikely to result in:
- undue cost to the Australian community or
- undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
- If a health waiver is available, it must be considered, documented and recorded in the HAP.
- A health waiver should be the last stage in visa assessment prior to grant or refusal. All other requirements for the grant of the visa should be met prior to waiver consideration. Once a health waiver decision is made, the visa application should be decided as soon as practicable to ensure that the health results remain valid and as health costs and conditions can change.
- If more than one applicant on a visa application fails to meet health on the grounds of significant cost and/or prejudice to access, health waiver submissions for those applicants must be considered together and if a recommendation is required from Health Policy Section, the cases must be sent via the HAP at the same time.
What is the Significant Cost Threshold
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:
- a period for which the Minister (or delegate of the Minister) intends to grant the visa if the visa applicant has applied for a temporary visa
- a permanent stay (i.e. a period commencing when the application is made) in Australia if the visa applicant has applied for apermanent or provisional visa
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.
What is Prejudice to Access?
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.
What does ‘undue’ mean
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’.
What does ‘mitigate’ mean
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.
Considering a health waiver
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 ([email protected]) for a recommendation is required before the delegate makes a health waiver decision. This will include:
- cases (other than offshore humanitarian cases) where the estimated costs are AUD 500 000 or more and
- cases where Prejudice to Access has been identified
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.
Compassionate and Compelling circumstances
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 favorable outcome.
Criteria which may be considered to be compassionate and compelling include (but are not limited too) where documentary evidence has been provided that:
- an Australian citizen sponsor has been diagnosed with a health condition and would be unable to access appropriate treatment if forced to relocate.
- there is no permanent migration pathway to the applicant’s home country (or another country that the couple have the legal right to reside in) available to the sponsor (for example, because same-sex migration to that country is not available).
- the sponsor would be seriously adversely affected financially, such that they would be unable to subsist (maintain or support themselves at a minimal level) in the applicant’s home country due to a lack of language skills, family support and/or employment opportunities.
- the sponsor holds/held a Protection or Refugee/Humanitarian visa and a decision not to waive would separate him/her from his/her spouse/children as he/she is unable to return to the country from which he/she fled and there is no third country option.
- there is evidence of an adverse impact on Australian citizen minor children if a decision not to waive is made (for instance, the sponsor has provided evidence that he/she is prevented by the other parent from removing minor children from Australia).
- the sponsor has significant family links to Australia, and has demonstrated caring or financial obligations towards them.
- Australia would miss out on a significant benefit that the applicant/sponsor could contribute to Australia’s business, economic, cultural or other development (for example, a specialised skill/business that is highly sought after in Australia) or are providing a valuable community service (for instance through their employment and/or volunteering activities).
- the sponsor/family is already settled in a remote, rural or regional area.
- the sponsor/applicant and/or other working family members in a non-Skilled visa application have occupational skills in high demand (refer to the Medium and Long-term Strategic Skills List (MLTSSL) of the Skilled Occupation List)
- for Skilled visas, the applicant and/or other working family members have occupational skills that are found on the Department of Jobs and Small Business Skilled Shortage lists (found at https://www.jobs.gov.au/national-state-and-territory-skill-shortage-information ).
- if not on the MLTSSL or the Department of Jobs and Small Business Skilled Shortage lists, the applicant/sponsor has a unique skillset that is vital to their employer’s business, and/or there is evidence that the employer would suffer detriment if a health waiver was not exercised.
- there are any other compelling or compassionate factors including the location and circumstances of the applicant and/or sponsor’s family members.
Health Waivers remitted by the Administrative Appeals Tribunal (AAT)
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.
AAT cases – HAP and IRIS
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.