NAPWA

The Health Requirement may be waived for some visa classes, where there are
“compassionate grounds” to do so, and where granting permanent residence to the person would be unlikely to result in:

• undue prejudice to the access to health care or community services of any
  Australian citizen or permanent resident; or
• undue cost to the Australian community.

The health requirement can only be waived if the person meets all the other criteria for granting of the visa or entry permit applied for. The health requirement cannot be waived where the person is assessed as representing a risk to public health or safety in Australia (e.g., if the person has active TB).

Factors that may be taken into account when determining whether cost/prejudice would be “undue” may include potential hardship if the person is returned to their country of origin, the impact on their relationships in Australia, and their state of health.

1 Notes for Guidance for Medical Officers of the Commonwealth of Australia, 9 November 2009

The health requirement may be waived in certain circumstances set out in the regulations.

Waiver is only available for a very limited number of visa classes, including:

• partner (includes de-facto, opposite sex or same-sex) of an Australian
  citizen or permanent resident;
• fiancé(e)
• dependent child of an Australian permanent resident or citizen;
• resolution of status;
• refugee and humanitarian visas granted overseas; and
• temporary humanitarian stay

If you are HIV positive and applying for a permanent visa, check with your migration agent or the Department of Immigration and Citizenship to confirm whether the waiver is available for the class of visa you are applying for.

If your application is in one of the classes where waiver is available and the Department of Immigration and Citizenship decides that you do not meet the health requirements, it must consider waiver. This is an integral and necessary part of the Department’s decision-making process.

Waiver – what is “undue cost”?

In order to consider waiver, a Medical Officer for the Commonwealth within the Department of Health and Ageing makes an estimate of the overall lifetime cost to Australian public funds of treatment, care, social services, housing etc for the particular applicant under consideration.

The Department of Immigration and Citizenship then decides whether the cost estimated would unduly prejudice Australians’ access to health care and community services, or otherwise represent an undue cost to the Australian community.

In making this decision, Departmental officers weigh such matters as:

• The merits of the case including any compelling circumstances and the strength of any humanitarian or compassionate factors. In the case of spouse visas, compassionate circumstances should be additional to the fact that there is a genuine relationship between the applicant and sponsor.
• The extent of social welfare, medical, hospital or other institutional or day care likely to be required in Australia.
• The educational and occupational needs of, and prospects for, the applicant in Australia over the whole period of intended stay.
• The potential for deterioration in the applicant’s state of health, taking into account not only the known medical factors but influences such as the strains of adjustment to a new environment, lifestyle, occupation and so on, as relevant to the visa class and the individual.
• The overall lifetime charge to Australian public funds.
• The willingness and ability of a sponsor, family member or other person or body toprovide care and support at no public cost. In this regard, it needs to be recognised that commitments such as private health insurance or financial undertakings do not thereby exclude the possibility of public cost.
• Factors preventing the sponsor from joining the applicant in the applicant’s own country.
• Whether there are Australian children of the relationship who would be adversely affected by a decision not to waive.
• The location and circumstances of family members of the applicant and sponsor.
• The immigration history of the applicant and sponsor, including compliance to date with any requirements and undertakings.

Applying for permanent residence in Australia: Information for people with HIV and their advisors