Health Waiver

Australia’s health requirement sits in the public interest criteria in Schedule 4 to the Migration Regulations 1994 — principally criteria 4005 and 4007. The substantive requirements of the two are almost identical. An applicant must:

first, be free from tuberculosis; second, be free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; third, be free from a disease or condition where a person who has it would be likely to require health care or community services during the relevant period, and where providing those services would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or to prejudice the access of an Australian citizen or permanent resident to those services.

Under regulation 2.25A of the Migration Regulations 1994, the decision-maker must seek the opinion of a Medical Officer of the Commonwealth when deciding whether an applicant meets the relevant requirements of 4005 or 4007. Subregulation (3) goes further: the decision-maker is to take the MOC’s opinion to be correct.

The practical consequence is direct. Simply arguing that the Department has over-estimated the cost is rarely a workable path. Shifting that finding generally requires new medical evidence capable of producing a fresh or further MOC opinion — or moving the focus to the waiver itself.

The period over which costs are estimated depends on the visa:

For a temporary visa, costs are assessed over the applicant’s intended period of stay in Australia. For a provisional or permanent visa, costs are generally assessed over five years, or three years where the applicant is aged 75 or older. Where the condition is permanent or ongoing with a reasonably predictable course, the MOC assesses costs over the applicant’s remaining life expectancy, up to a maximum of ten years.

Separately from cost, there is an independent question: whether the applicant’s condition is likely to prejudice the access of Australian citizens and permanent residents to health care or community services that are in short supply. The Department determines the scope of those services on advice from the Department of Health, Disability and Ageing. At present only two are listed: organ transplants and dialysis.

Three things in that provision are worth noting.

First, the waiver reaches paragraph (1)(c) only — the cost and scarce-services limb. Tuberculosis, and threats to public health or danger to the Australian community, are outside what can be waived. The Department puts it plainly: a health waiver cannot be exercised where the applicant fails the health requirement because of active tuberculosis, or because the condition may pose a danger to the Australian community or is a threat to public health.

Second, the provision says “may”, not “must”. Even where every factor points the right way, exercising the waiver remains a matter of discretion.

Third, the test at this stage is undue cost and undue prejudice — not the significant cost applied at assessment. The two are not the same. Assessment asks whether costs cross the A$86,000 line; the waiver asks whether, in this applicant’s actual circumstances, that cost and that impact on scarce services are still undue. This is the point at which personal circumstances enter the analysis.

The Department states that an applicant does not need to apply for a health waiver. Where an applicant fails the health requirement and a waiver is available for the subclass, the visa processing officer will make contact, advise that this is the position, and seek further information.

The Department will usually ask for two things: further information on why a health waiver should be exercised, and a completed formal submission template setting out that case.

The Department says each waiver is considered case by case, weighing a range of factors — among them whether the applicant or any family members can lessen the potential cost of the condition and reduce reliance on health care and community services, and whether there are compassionate and compelling circumstances supporting the exercise of the waiver.

This is the most practical question in this area, and the one most often misunderstood. The answer is not on the Department’s guidance pages — it is in Schedule 2 to the Migration Regulations 1994, where the criteria for each visa subclass state whether 4005 or 4007 applies. Where 4005 applies, there is no waiver step at law. Only where 4007 applies is a waiver available at all.

The comparison below is drawn from the Migration Regulations 1994 as in force on 1 July 2026 (Compilation No. 288, register ID F2026C00667). It is included to show how the rule works and is not a complete list; for any individual application, the criteria that applied to that subclass at the relevant time govern.

Two of those contrasts deserve particular attention.

For subclass 186, the Temporary Residence Transition stream attracts 4007, while the Direct Entry and Labour Agreement streams attract 4005. For subclass 189, the Points-tested stream attracts 4005 while the Hong Kong stream attracts 4007. For an applicant who qualifies under more than one stream, the stream chosen can decide whether there is any room to move at all if a health issue arises.

Subclasses 103 and 143 both attract 4005, with 4007 reaching subclass 143 only in limited situations such as an applicant who held a substituted Subclass 600 visa at the time of application. This matters a great deal for older parents: because permanent visa costs are generally estimated over five years, three years from age 75, and up to ten years for an ongoing condition with a predictable course, older applicants are more likely to cross the threshold in the first place — and once they do, there is no waiver available at law.

It is worth adding that criterion 4006A, which once sat in Schedule 4, has been repealed and now applies only to subclass 457 applications made before 18 March 2018. Older material citing 4006A should be treated as out of date.

Where it is an applicant’s Australian-born child who fails the health requirement, the Department has a separate pathway that runs alongside the waiver — and no separate application is needed. The visa processing officer assesses the child’s eligibility on their own initiative.

The officer must be satisfied that the child is under 18 at the time of the visa decision (and has not turned 18 during processing), was born in Australia, and is ordinarily resident in Australia. The officer confirms the place of birth by sighting the child’s full standard Australian birth certificate issued by Births, Deaths and Marriages; extracts and ceremonial birth certificates are not accepted.

If the child does not satisfy that assessment, the Department will then consider a health waiver, if one is available for the subclass applied for.

The two are regularly confused, and they are entirely different things.

A health undertaking (form 815) is an agreement between the applicant and the Australian Government to manage a particular health condition after arrival. On signing, the applicant agrees to contact the Department’s medical services provider, Bupa Medical Visa Services, within 28 days of arriving in Australia, to attend a state or territory health clinic where required, and to complete any further investigation or course of treatment. The Department may ask an applicant to sign one where health examinations were completed outside Australia, where a protection visa is being sought, or where there is an increased risk of developing active tuberculosis — for example, previous treatment for tuberculosis, or an abnormal chest x-ray. Conditions such as inactive tuberculosis, HIV, hepatitis B or C, and leprosy may also trigger the request. If the Department asks an applicant to sign a health undertaking and the applicant does not sign, the visa will not be granted.

The first step is usually not to send a short explanatory letter, but to establish what the Department has actually sent and what it is in law. A routine request for further information, a natural justice letter under section 57, and a request for a health waiver submission carry different legal weight and call for different responses.

Preparing a waiver submission usually means working on three levels at once.

Medical: the MOC’s opinion is formed on the examinations and records already before it. Where the diagnosis has since been updated, the condition has stabilised, treatment has changed, or the original material did not reflect the true severity or course of the condition, new evidence such as a specialist report may be needed to produce a fresh or further MOC opinion. Simply disagreeing with the estimated figure is not enough to displace an opinion that regulation 2.25A requires be taken as correct.

Cost and reliance: the Department expressly considers whether the applicant or family members can lessen the potential cost and reduce reliance on public health care and community services. Evidence here has to come down to concrete arrangements — existing insurance and private treatment arrangements, how care is shared within the family, and whether the financial capacity is sustainable — rather than an assurance that the family will cover it.

Compassionate and compelling circumstances: this generally covers the applicant’s real ties to Australia, the interests of family members and particularly of minor children, the practical hardship departure would cause, and the applicant’s work, tax and community contribution in Australia. As in character matters, these factors cannot be stated in general terms; the submission has to show what they mean in practice.

Timing also matters. Requests for further information and for submissions carry deadlines, and where an applicant does not respond in time the officer may decide on the material already held.

The Department states that where a health waiver is exercised, the visa application continues to be processed; where it is not exercised, the application is refused and the visa processing officer will advise the applicant.

It is worth being clear that exercising the waiver is not the same as a grant — it removes the health obstacle, and the application must still satisfy every remaining criterion. Conversely, the provision itself requires the applicant to satisfy all other criteria before the waiver arises at all.

If a visa is refused, whether a review is available, who conducts it, and how long the applicant has all depend on the subclass, where the applicant was at the relevant time, and other circumstances. Reviewable matters go to the Administrative Review Tribunal (ART). Under section 105 of the Administrative Review Tribunal Act 2024, the Tribunal must affirm the decision, vary it, or set it aside and either substitute its own decision or remit the matter for reconsideration — which means that in a matter governed by 4007, the Tribunal can consider the health waiver itself.

The same constraint carries over to review, however: the MOC’s opinion is still to be taken as correct. What can usefully be built at the review stage is therefore new medical evidence capable of supporting a fresh MOC opinion, together with a fuller case on cost, reliance and compassionate and compelling circumstances — not a repeat of the argument that the original estimate was wrong.

Review deadlines after a refusal are often short. On receiving a decision, confirm the review rights and the cut-off date first, then decide what to do.

NS Legal assists clients with visa matters involving the health requirement and health waivers, including confirming whether the subclass and stream applied for attract criterion 4005 or 4007, assessing risk against both the cost and the scarce-services limbs, reviewing the Department’s requests for further information and section 57 natural justice letters, coordinating specialist medical evidence to support a fresh or further MOC opinion, preparing health waiver submissions and supporting material in the form the Department requires, and advising on review pathways and time limits after a refusal.