Navigating the Australian Migration Health Requirement and the Health Waiver Process

The health requirement is a critical, and often complex, component of the Australian visa application process. These requirements are in place to achieve three main objectives:

1. To protect the Australian community from threats to public health.
2. To contain public expenditure on health and community services.
3. To safeguard Australian residents’ access to health and other community services that are in short supply.

Health Criteria and the Public Interest Test

Australian visa applicants are assessed against the Public Interest Health Criteria (PIC) outlined in Schedule 4 of the Migration Regulations.

The core requirement stipulates that an applicant must:

• Have completed the required medical examination.
• Be free from tuberculosis (TB) or any disease or condition that is a threat to public health or a danger to the Australian community.
• Be free from a disease or condition that would be LIKELY TO either: 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.

The specific PIC applied depends on the visa subclass. The standard health requirement is covered by two main criteria: PIC 4005 and PIC 4007. PIC 4005 is the most stringent and does not offer a health waiver. By contrast, PIC 4007 applies to a large number of visa subclasses—approximately 60% of all visa applicants—and does have a Health Waiver available, making it a critical pathway for applicants with certain medical conditions.

Key Changes and Ongoing Reviews

The Australian migration health framework is under ongoing review and has seen significant changes:

1. Significant Cost Threshold (SCT) Increase

The threshold for what constitutes a “significant cost” under PIC 4005 and 4007 underwent the most substantial increase since its implementation in 1995. The previous cost threshold was $51,000, which has been increased to the current cost of $86,000, effective from July 1, 2024. This increase means that more individuals with medical conditions previously deemed too costly may now qualify for visas. Costs are calculated over different periods, typically 5 or 10 years, and include not just health care (including medication), but also Commonwealth government disability services, Career Allowance, NDIS support, and special education services (under Policy only).

2.  PIC Exemption for Minors Born in Australia

Following a Department of Home Affairs (DOHA) review that concluded in April 2024, a reform was implemented that amends PIC 4005 and PIC 4007. The new rule, effective from October 16, 2024, states that visa applicants who are minors born in Australia and are ‘ordinarily resident’ in Australia are no longer required to meet the PIC Health Criteria.

3. Review of the Disability Discrimination Act (DDA)

The government is also considering a review of Section 52 of the Disability Discrimination Act 1992 (Cth). This section authorizes discrimination against people with disability seeking to enter Australia. The review will consider changes to legislation and migration practices to eliminate or minimise discrimination, with particular reference to the rights recognised by the UN Convention on the Rights of Persons with Disabilities (CRPD). The government accepted the recommendation ‘in principle’ in July 2024.

The Health Waiver Process (PIC 4007)

When a visa applicant is subject to PIC 4007 and receives a ‘does not meet’ outcome from a Medical Officer of the Commonwealth (MOC), the health waiver process is triggered.

The waiver can be exercised if the s65 delegate is satisfied that granting 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.

Key Waiver Considerations

The decision-maker conducts a holistic assessment, taking into account all relevant factors, including the capacity to mitigate potential costs and the strength of any compassionate or compelling circumstances.

The Best Interests of a Child:

• A major factor introduced is that where the decision affects an Australian citizen or permanent resident minor child, their best interests should be treated as a primary consideration.

Compassionate and Compelling Circumstances are crucial to a successful submission and include (but are not limited to):

• A citizen sponsor unable to access appropriate medical treatment if forced to relocate.

• No permanent migration pathway available to the sponsor in the applicant’s home country (e.g., due to same-sex migration restrictions).

• The sponsor would be seriously adversely affected financially if forced to relocate.

• Australia would miss out on a significant benefit that the applicant/sponsor could contribute (e.g., a specialised skill/business or valuable community service).

• Evidence of an adverse impact on Australian citizen or permanent resident minor children if a decision not to waive is made, especially if it would lead to long-term or permanent separation.

Capacity to Mitigate Costs is also highly relevant, focusing on both financial and social capital:

• Documentary evidence that the applicant, sponsor, or other family members have substantial income, assets, savings, or another demonstrated financial ability to mitigate the identified costs (in relation to the potential cost).

• Private care arrangements and support being available.

• Demonstrated contribution of applicants/sponsors to the community.

Crafting an Effective Health Waiver Submission

A written submission is critical to maximizing the chance that the health waiver power will be exercised.

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