A Significant Change to Visa Health Criteria

Most Australian visa applications are assessed subject to a health requirement, namely that the applicant is free from a disease or condition in relation to which:

• a hypothetical person who has it would be likely to require health care or community services; and
• the provision of such health care or community services would result in a significant cost to the Australian community.

Under Departmental policy, “significant cost” is $86,000 over the period of the visa. In the case of a permanent visa, the period assessed is 5 years or, if the condition is permanent, 10 years.

The health criterion is known as “PIC 4005”. For some visas, “PIC 4007” applies, the terms of which mirror those of PIC 4005, except that a waiver may be exercised if, in the decision-maker’s view, the costs of providing health care or community services are “not undue”. When considering a health waiver, all of the applicant’s circumstances are relevant, including whether the applicant is able to mitigate those costs.

The health requirement is usually one in respect of which “one fails, all fail”, i.e. if one member of the family unit fails the health requirement, all applicants will not be able to be granted their visas.

A welcome change came into effect yesterday, 16 October 2024, through the Migration Amendment (Public Interest Criteria 4005 and 4007) Regulations 2024, which amends PIC 4005 and PIC 4007 so that they no longer apply to a minor visa applicant who was born and ordinarily resident in Australia. The new change applies to visa applications lodged on or after 16 October 2024, but also to applications lodged prior to that date but which have not yet been finally determined (this includes matters on appeal to the Administrative Review Tribunal).

The intention behind this change is two-fold:

• that minors born and ordinarily resident in Australia with a a health condition or disability should not be disadvantaged;
• that parents or carers of such children should also not be disadvantaged.

This would come as a relief to a significant cohort of visa holders who may have lived in Australia over a number of years through holding various temporary visas and over that time, had children born in Australia with medical conditions or disabilities. This cohort will no longer risk their visas being refused on medical grounds or be forced to deal with the difficult (and often costly and uncertain) task of making health waiver submissions.

If you need assistance with visa health requirements, please contact Lester Ong or Melissa Phan.