The health waiver under Public Interest Criterion 4007 (PIC 4007) of the Migration Regulations 1994 allows a decision-maker to grant a visa to an applicant who would otherwise fail the health requirement, provided the decision-maker is satisfied that granting the visa would not be contrary to the public interest.

Most Australian visa applicants are required to meet the health requirement under the Migration Act 1958 and the Migration Regulations 1994. The health requirement protects the Australian community from significant costs to the health and community services system and protects public health. However, PIC 4007 provides a discretionary mechanism — a waiver — that may be available in appropriate cases where the costs or risks are outweighed by compelling individual circumstances.

• Migration Regulations 1994, reg 4007 — the Public Interest Criterion setting out the health waiver discretion
• Migration Act 1958, s 65 — the decision-maker must be satisfied that all criteria for the visa are met before granting; the waiver operates within this framework
• Migration Regulations 1994, PICs 4005 and 4006A — the other health-related PICs; 4007 is the waiver-specific criterion

The full text of reg 4007 is available from the Department of Home Affairs (PDF extract) and the Migration Regulations 1994 on the Federal Register of Legislation.

When does PIC 4007 apply?

PIC 4007 is not available for all visa subclasses. Whether a health waiver is available depends on the specific visa subclass applied for. The decision-maker must consider whether a health waiver is applicable and will contact the applicant if further information is required. Applicants should check the criteria for their specific visa subclass to determine whether a waiver is available.

The Significant Cost Threshold (SCT)

The health waiver framework is tied to the Significant Cost Threshold (SCT), which is the benchmark cost used to assess whether an applicant's health condition would impose a significant cost on Australian health and community services. The SCT is reviewed by the Department of Home Affairs every two years. The current SCT is published on the DHA website — practitioners should check the current value at the time of assessment.

If an applicant's health condition is expected to result in costs that exceed the SCT over the relevant period, they fail the standard health requirement. The health waiver process is then the mechanism by which the decision-maker can nevertheless consider granting the visa.

What the waiver assessment considers

When a health waiver is available for a visa subclass and the applicant fails the standard health requirement, the decision-maker undertakes a waiver assessment. The assessment considers:

• The likely costs to Australian health and community services arising from the applicant's condition — and whether those costs can be mitigated, for example by health undertakings or arrangements for private health insurance
• Whether there are compelling or compassionate circumstances relating to the applicant or their family members — for example, the applicant has a genuine and close relationship with an Australian citizen or permanent resident, or removal would cause significant hardship to Australian family members
• The benefits to Australia of granting the visa — economic contribution, family unity, community ties
• Any health undertakings the applicant is willing to make — for example, a commitment to obtain private health insurance or to pay for certain health services

Health undertakings

In some cases, a decision-maker may grant a waiver subject to the applicant signing a health undertaking — a formal commitment to take out private health insurance, or to notify authorities of their health condition. A health undertaking does not guarantee that a waiver will be granted, and a waiver may be granted without a health undertaking being required. The requirements vary by visa subclass and individual circumstances.

Conditions that are not subject to waiver

PIC 4007 does not allow the waiver of the public health component of the health requirement. Where a condition poses a public health risk — for example, active tuberculosis — a waiver of that specific requirement is generally not available, regardless of other circumstances. The waiver only applies to the cost-based component (excessive cost to the health and community services system), not to the public health risk component.

The health waiver is a discretionary decision — a decision-maker is not required to grant the waiver even if the criteria are met. The waiver process involves a weighing exercise, and the outcome depends on the strength of the compelling circumstances presented by the applicant.

Applicants who are notified that their visa may be refused on health grounds should seek legal advice promptly, as there are time limits for making submissions in response to a health assessment. Evidence of compelling circumstances — medical reports, letters from Australian family members, evidence of insurance arrangements, or specialist assessments of the applicant's condition — should be assembled as early as possible.

Full information on the health requirement, the health waiver, and the current SCT is available at the DHA health waiver page.