Health Waivers and Australian Visa Applications
A health waiver is a legal mechanism that allows the Department of Home Affairs to grant a visa even if the applicant fails the health requirement, provided specific conditions are met. The health requirement is part of the Public Interest Criteria (PIC), found in Schedule 4 of the Migration Regulations 1994.
Health-related PICs include:
- PIC 4005 – No health waiver available
- PIC 4006A – Relevant to legacy subclass 457 visa applications
- PIC 4007 – Health waiver available (mainly skilled, partner, humanitarian and 482 visa cases)
Not all visa subclasses allow for a health waiver. It’s crucial to know which PIC applies to your visa to understand your options.
When Can a Health Waiver Be Considered?
A health waiver is only available if PIC 4007 applies to your visa subclass. This includes:
- Skilled migration visas (e.g., 189, 190, 491)
- Employer-sponsored visas (e.g., 482 SID, 186 ENS (TRT), 494 SESR)
- Partner visas (e.g., 820/801, 309/100)
- Humanitarian and protection visas
- Certain student visas (e.g., Subclass 500 for Foreign Affairs or Defence Sector)
The waiver is not available under PIC 4005, nor in cases where the health condition presents a public health risk, such as active tuberculosis.
How Does Failing the Health Requirement Work?
After undergoing a Migration Health Examination, the Department receives a report from a Medical Officer of the Commonwealth (MOC). A visa applicant may be assessed as “Does Not Meet” if:
- The condition is likely to result in significant health care or community service costs, or
- The condition may prejudice access to health care or community services needed by Australian citizens or permanent residents (e.g., dialysis or organ transplants)
If a waiver is available, the applicant is issued a section 57 natural justice letter giving them the opportunity to respond before a final decision is made.
What Is the Significant Cost Threshold (SCT)?
The Significant Cost Threshold is the benchmark used to determine whether a condition imposes a high cost burden. As of 1 July 2024, the SCT is AUD $86,000.
This means if the projected lifetime cost of treatment and community service support for a temporary or permanent visa applicant exceeds this amount, the MOC will assess them as not meeting the health requirement.
Examples of conditions often triggering SCT assessments:
- Cancer (with ongoing treatment)
- HIV/AIDS
- Intellectual disability
- Autism Spectrum Disorder
- Chronic renal disease (e.g., requiring dialysis)
- Complex mental health conditions
- Hemophilia or other high-cost chronic conditions
What Is “Prejudice to Access”?
This refers to situations where the applicant’s condition would impact access to limited health resources in Australia. The most common examples include:
- Organ or bone marrow transplants
- Dialysis services
- High-dependency services (e.g., ICU beds, specific paediatric or geriatric care)
When Can the Department Exercise a Health Waiver?
To grant a waiver under PIC 4007(2), the delegate must be satisfied that:
- All other visa criteria are met
- Granting the visa is unlikely to result in undue cost or prejudice to access for the Australian community
- Any impact is mitigated, through private insurance, personal finances, support networks, or limited usage of services
- Compassionate and compelling circumstances support the waiver (e.g., Australian citizen family members, established life in Australia)
Key Considerations in Health Waiver Applications
- Cost Assessment: The MOC estimates treatment and service costs over the visa duration (or lifetime for permanent visas).
- Undue Burden: The delegate assesses whether these costs are “undue,” taking into account the applicant’s ability to offset or reduce those costs.
- Mitigating Factors: Applicants may rely on private health insurance, family support, or personal funds to show the costs are manageable.
- Timing: A health waiver is considered only after all other visa criteria are met.
- Multiple Applicants: If more than one applicant fails the health requirement, all waiver assessments must be done jointly.
Our Health Waiver Legal Services
At Tolic Lawyers, we offer a comprehensive service to give your application the best chance of success, including:
Reviewing MOC assessments and health reports Preparing persuasive health waiver submissions Responding to section 57 invitations Gathering supporting medical and financial evidence Drafting compelling personal and compassionate arguments Liaising with medical professionals and case officers Advising on appeals if a waiver is refused
Has Your Visa Been Refused for Medical Reasons?
Don’t give up. A health waiver could be the key to continuing your migration journey.
Contact Tolic Lawyers today to schedule a confidential consultation and receive tailored advice on your eligibility and options.
