HEALTH WAIVERS IN RELATION TO VISA APPLICATIONS
Australian visas & health criteria
Australian migration legislation requires that almost all applicants seeking a visa to travel to, or remain in, Australia must meet prescribed health criteria. These criteria are intended to protect the Australian community’s standard of public health and safety, expenditure on health and welfare, and access to health services.
All permanent and certain temporary visa applicants are required to undergo health examinations as part of the visa application process to determine if they meet the health requirement.
In practical terms this means that a visa applicant must be free from a disease or condition that would require health care or community services that would result in a significant cost to the Australian community, or prejudice the access of an Australian citizen or permanent resident to health care or community services (regardless of whether the health care or community services will be used in connection with the applicant).
Health waivers available to certain visa classes
A health waiver is available to be considered for certain visas. This is referred to by the Department of Immigration & Border Protection (DIBP) as a PIC 4007 waiver.
Visas that have a health waiver available include partner, child, skilled independent subclass 189 (NZ stream only); subclass 888 (permanent) and ENS/RSMS visas but only for the temporary residence transition stream.
A health waiver may only be exercised after a Medical Officer of the Commonwealth has determined that the visa applicant does not meet the health requirement and where the DIBP is satisfied that the granting of the visa would be unlikely to result in:
undue costs or
further pressure on health care and community services that are in already short supply in Australia. (This is referred to as ‘prejudice to access’.)
Case study: medical condition estimated to cost $3.5 million over a lifetime
Putt Legal was approached some time ago by a client who had worked for a mining services company in Australia on a subclass 457 visa. The client was originally from Africa, and had a partner and several children.
After a number of years on the subclass 457, the family made an application for a permanent ENS temporary residence transition stream visa (subclass 186 visa). As noted above, this visa has a health waiver available.
One of the client’s children was diagnosed by a Medical Officer of the Commonwealth with a medical condition that was likely to require health or community services costing an estimated $3.5 million over the child’s lifetime.
The DIBP then considered whether to exercise the health waiver, but was not satisfied that the cost identified by the Medical Officer was outweighed by mitigating factors and/or compassionate and compelling circumstances. As a result, the subclass 186 visa application was refused for all family members (because if “one fails, all fail”). The family appealed to the Administrative Appeals Tribunal (AAT) and engaged Putt Legal’s services.
Significant evidence was placed before the AAT that showed that the family had an ability to defray costs to the Australian community; considerable employment skills; had actively contributed to Australian society; and that there were compelling and compassionate circumstances that showed that the child affected by the medical condition would find it extremely difficult to return and live in the African country from which the family originally came. As a result, the AAT found that although the potential costs of the child’s medical condition were high, the granting of the visa was unlikely to result in undue costs to the Australian community when all circumstances were considered.
The AAT remitted the visa application to the DIBP for processing, and it is likely that all family members will be granted permanent residence in the near future.
If you or a family member have a medical condition that you are concerned may adversely affect a permanent or temporary visa application, we suggest that you contact us for a confidential discussion as to your options.
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