Health waivers

A waiver of the need to meet the health requirement (a health waiver) is available for applicants of certain visa subclasses. The visa subclasses that have a health waiver available are grouped into four categories:

• Business Long Stay (457)
• Onshore Skilled
• Family and Non-Humanitarian
• Humanitarian.

A health waiver may only be exercised after a Medical Officer of the Commonwealth (MOC) has determined that the visa applicant does not meet the health requirement and where we are satisfied that the granting of the visa would be unlikely to result in undue costs or prejudice to access (health care and community services that are in short supply in Australia).

No health waiver is available where you have been found to have active tuberculosis, or another condition considered to be a threat to public health.

Health waivers for Business Long Stay (subclass 457) Visa applicants

A health waiver can be exercised for you or your dependants, if you have applied for a 457 visa and have failed to meet the health requirement on significant costs or prejudice to access grounds. The health waiver can be exercised if your Australian employer signs a 'nominator undertaking' agreeing to meet all the costs relating to the health condition that caused you, or your dependants, to fail to meet the health requirement. This waiver is referred to as a Public Interest Criteria (PIC) 4006A health waiver.

Health waivers for Skilled (Temporary Transition Stream of subclasses 186 and 187) visa applications

A skilled health waiver may be exercised for the Temporary Transition Stream of the Employer Nomination Scheme (subclass 186) and Regional Sponsored Migration Scheme (subclass 187) from 1 July 2012 where we are satisfied that the granting of the visa would be unlikely to result in undue costs or prejudice to access. Previously, a skilled health waiver was available for subclasses 846, 855, 856, 857 however these subclasses have now closed.

This waiver is referred to as a PIC 4007 skilled health waiver.

Note: Where the estimated health care and community service costs of the disease or condition are equal to or greater than AUD500 000 and/or prejudice to access has been identified, the department may refer your case to the Australian state or territory government agency in which you are residing, or intend to reside if your visa is granted, for a recommendation as to whether they would support a health waiver being exercised.
Health waivers for Family and non-Humanitarian visa applicant

A health waiver is available for certain family and non-humanitarian visas where we are satisfied that the granting of the visa would be unlikely to result in undue costs or prejudice to access. These waivers are referred to as a PIC 4007 Family and non-Humanitarian health waiver.

The health waiver process

You do not need to apply for a health waiver. If you are eligible for a health waiver the department will send you a letter advising that you, or your dependants, have failed to meet the health requirement and that a health waiver is going to be considered.

The letter will invite you to put forward additional claims and information in support of a health waiver being exercised.

Once your response has been received, the department will then assess your ability and the ability of any of your supporters to mitigate the potential costs and use of health care and community services, and any compassionate and compelling circumstances that would support a health waiver being exercised in your case.

Each health waiver is examined and determined on a case by case basis. The delegate will consider all the available information, including information you put forward in support of a health waiver.

In certain cases, this will include the opinion of the department's national office, or an Australian state or territory government agency (skilled health waivers only) which will be sought before a decision on whether to exercise a health waiver or not is made.

Factors that may be considered by the department in determining a health waiver include: 

·         That the nominated occupation is in demand or severe shortage, Australia-wide and in the jurisdiction/geographical area where they propose to reside;

·         That the family is already settled or proposes to settle in a remote, rural or regional area;

·         That the family's care obligations constrain their earning capacity or ability to fully deploy their skills or practice their trade/profession/occupation in the economy;

·         the skills and qualifications of the main visa applicant and their migrating family members;

·         the extent to which the visa applicant and/or their family may be able to mitigate potential costs/prejudice to access issues identified by a MOC;

·         the reasons why the family would find it difficult to return to their home country;

·         that it is very unlikely or impossible that the non-migrating member of the family unit who does not pass the health criteria will ever migrate to Australia;

·         the education and occupational needs of, and prospects for the applicant in Australia;

·         the potential for the applicant’s state of health to deteriorate, taking into account not only the known medical factors but also influences such as the strains of adjusting to a new environment, life-style, occupation etc (as applicable to the visa class and the individual).

Please contact Nevett Ford Lawyers (Melbourne) to speak to one of our 5 dedicated and experienced immigration lawyers if you require advice and assistance by telephone: 03 9614 7111 or by email at: rcurtisgriffiths@nevettford.com.au. 

Legal advice and assistance is highly recommended.