TPD Claims for Temporary Residents and Visa Holders in Australia

Yes, temporary residents and visa holders working in Australia can claim Total and Permanent Disability (TPD) benefits through their superannuation, as long as they meet the definition of disability in their policy and have TPD insurance cover. Your visa status does not prevent you from making a claim if you've contributed to superannuation while working in Australia.

This is important because many temporary workers don't realise they have these entitlements, or they hear that non-citizens cannot claim TPD, which isn’t true. 

If you've become permanently unable to work due to illness or injury in Australia, you may have significant insurance benefits through your super that you're entitled to access, regardless of your visa status.

This guide explains your eligibility, the claim process, how DASP (Departing Australia Superannuation Payment) affects your entitlements and the critical steps you must take before leaving Australia in order to protect your rights.

Understanding TPD Claims for Temporary Residents

What is a TPD claim and who qualifies?

TPD insurance provides a lump sum payment if you become totally and permanently disabled and can no longer work. For temporary residents, eligibility depends on whether you have TPD cover through your superannuation fund and if you meet your policy's definition of disability (not on your visa status).

Most super funds automatically provide basic TPD cover when you start contributing, which means if you've been working and paying into a super, you likely have this insurance. The definition typically requires that you're unable to work in your usual occupation for at least 3 to 6 consecutive months due to illness or injury.

Learn more about what is Total and Permanent Disability Insurance?

How does a visa status affect TPD eligibility?

The status of your visa does not disqualify you from claiming TPD while you're in Australia. According to ATO guidance, temporary residents have the same right to claim insurance through their superannuation as Australian citizens and permanent residents, provided they meet the policy requirements.

The visa consideration only becomes relevant when accessing your super (including any TPD payout). While you’re in Australia on a valid visa, you generally cannot withdraw your super except under specific early release conditions. However, if your TPD claim is approved, those funds are added to your super balance and can later be accessed through DASP when you leave Australia permanently.

Your Rights and Entitlements

What you're entitled to:

• Equal TPD claim rights: temporary visa holders have the same right to lodge TPD claims through their super as Australian citizens, with no discrimination based on visa status.

• Super accumulation protection: all superannuation contributions you make while working on a temporary visa are yours, including any employer contributions and TPD insurance attached to your account.

• DASP access: when you permanently leave Australia with an expired or cancelled temporary visa, you can claim your entire super balance (including approved TPD payouts) through the Departing Australia Superannuation Payment scheme.

• Appeal rights: if your TPD claim is rejected, you have the right to request internal review by your super fund, lodge a complaint with the Australian Financial Complaints Authority (AFCA) and pursue legal action if necessary.

What you must do:

• Lodge your claim within the limitation period: most TPD policies require you to make a claim within 2 years of the date you became totally and permanently disabled (this timeframe varies by policy, so check yours carefully).

• Provide Australian medical evidence: your claim must be supported by reports from Australian-registered medical practitioners, including specialists relevant to your condition, with functional capacity assessments demonstrating your inability to work.

• Apply for DASP within 6 months: once you've left Australia with an expired visa, you must apply for DASP within 6 months, or your super (including any TPD payout) will be transferred to the ATO as unclaimed money.

Key deadlines:

1. 30 days after becoming disabled: notify your super fund and insurer as soon as practically possible (ideally within 30 days).
2. 2 years from disability date: standard limitation period for lodging TPD claims (check your specific policy document).
3. Before leaving Australia: it’s strongly recommended to lodge your TPD claim while still in Australia so it’s easier to gather medical evidence.
4. 6 months after departure: final deadline to apply for DASP once you've left Australia with an expired visa.

Common Scenarios and Questions

I'm on a 482 visa and was diagnosed with cancer, can I claim TPD?

Quick answer: yes, as long as your cancer diagnosis means you can no longer work in your usual occupation and you have TPD cover through your super.

What to do:

• Request a TPD claim form from your super fund immediately, as cancer is one of the most common qualifying conditions for TPD claims in Australia.
• Gather comprehensive medical evidence from your oncologist, including diagnosis reports, treatment plans, prognosis statements and functional capacity assessments showing your inability to work.
• Lodge your claim while still in Australia if possible because this makes it much easier to obtain follow-up medical assessments if the insurer requests additional evidence.
• If your claim is approved, the lump sum is paid into your super account and can be accessed via DASP when you leave Australia, or earlier under compassionate grounds.

Important note: cancer treatments can be lengthy, and insurers may argue you're not "permanently" disabled if you're still undergoing treatment. Strong medical evidence showing the long-term or permanent nature of your incapacity is crucial.

My student visa expires next month, what happens to my TPD claim if I leave?

Quick answer: You can still pursue a TPD claim after leaving Australia, but it's significantly more difficult and has a lower success rate.

What to do:

• Lodge your TPD claim before your visa expires if at all possible, even if you don't have all documentation ready yet. You can submit additional evidence later.
• If you must leave before lodging, contact your super fund immediately after departure to start the claims process, noting that you'll need to arrange Australian medical assessments (some insurers accept telehealth consultations).
• Keep detailed records of all medical treatment, work history and how your condition prevents you from working in your usual occupation.
• Be prepared for longer processing times and potentially higher rejection rates, as insurers are more sceptical of claims lodged from overseas.

Important note: you cannot claim DASP until after leaving Australia, but you should start your DASP application before departure to avoid missing the 6-month deadline.

I suffered a workplace injury, should I claim workers' compensation or TPD?

Quick answer: you can potentially claim both workers' compensation and TPD because they serve different purposes and have different eligibility criteria.

What to do:

• Report your workplace injury to your employer immediately, and lodge a WorkCover claim (this covers your immediate medical expenses and wage replacement while you're unable to work).
• Notify your super fund about your injury so you can preserve your right to claim TPD, which provides a lump sum payment if you become totally and permanently disabled.
• Keep in mind that WorkCover is a no-fault scheme covering work-related injuries, while TPD requires you to meet your policy's definition of total and permanent disability (which may take several months to establish).
• Also bear in mind that any workers' compensation payments you receive may affect the amount paid by your TPD insurer, as most policies have offset clauses to prevent double-dipping for the same disability.

Important note: TPD claims typically require you to be off work for at least 3-6 consecutive months before the insurer will assess whether your disability is "permanent," so timing is important.

Can I claim TPD if I plan to work in my home country after leaving Australia?

Quick answer: your ability to work in your home country should not affect your Australian TPD claim, as the test is whether you can work in your usual occupation in Australia.

What to do:

• Focus your claim on how your injury or illness prevents you from performing your usual work duties in Australia, which is what your policy covers.
• Provide evidence specific to your Australian employment, including your job duties, how your condition affects your ability to perform those duties and your work history in Australia.
• If the insurer argues you have the capacity to work in your home country, seek legal advice immediately because this is often an incorrect ground for rejection based on recent case law.

Important note: some policies have "any occupation" definitions that consider whether you can work in any job you're reasonably qualified for, which may consider work in your home country, but "own occupation" policies (more common) focus only on your usual work. Learn more about the own occupation and any occupation policies.

Step-by-Step Process

1. Check your TPD cover status. Log into your super fund's member portal or call them to confirm you have TPD insurance. If you do, also ask about the insured amount and the policy definition of disability so you know whether you're likely to qualify.

2. Notify your super fund in writing. Inform them of your injury or illness as soon as you believe you may qualify for TPD (even if you're not ready to lodge a formal claim yet, as this notification preserves your rights and starts the process).

3. Request TPD claim forms and policy documents. Your super fund must provide the claim form, a copy of your insurance policy (including the definition of total and permanent disability) and information about the claims process.

4. Gather comprehensive medical evidence. Get detailed reports from your treating doctors, specialists and allied health professionals that specifically address how your condition prevents you from working in your usual occupation, including diagnosis, treatment history, prognosis and functional limitations.

5. Complete all claim forms thoroughly. Fill out every section of the claim form with detailed information about your work history, how your condition developed and its impact on your ability to work (incomplete forms are a common reason for delays and rejections).

6. Submit your claim with all supporting documents. Lodge your completed claim form along with all medical evidence, employment records and any other requested documentation (keep copies of everything you submit).

7. Respond promptly to insurer requests. It’s likely that your insurer will request additional information, medical examinations and/or surveillance. Be sure to cooperate fully and provide all requested information within the timeframes given to avoid claim delays.

8. Receive claim decision. Your insurer will generally take 3-6 months to assess your claim, and will notify you in writing of their decision (if approved, funds are paid into your super account; if denied, you'll receive reasons for the rejection).

9. Appeal if necessary. If your claim is rejected, you can request an internal review, lodge a complaint with the AFCA and seek legal representation to challenge the decision.

10. Access funds via DASP if leaving Australia. Once your TPD claim is approved and the funds are in your super, you can apply for DASP to withdraw your entire balance when you leave Australia permanently with an expired visa.

Documents you'll need:

• Medical evidence: detailed specialist reports (not just GP certificates), test results, imaging reports, hospital records, treatment history, medication lists, functional capacity evaluations and prognosis statements which specifically address the permanence of your disability and inability to work.

• Employment documentation: pay slips, employment contracts, position descriptions, evidence of duties performed, employer statements about your role and performance and records showing when you stopped working or reduced your hours due to your condition.

• Visa and identity documents: current and previous visa grant notices, passport, proof of address in Australia, super fund member number and bank account details for payment (DASP requires additional identity verification through the ATO).

• Super contribution records: these are available through your myGov account linked to the ATO, and show your superannuation contributions during your time in Australia (this confirms you're eligible for DASP when you leave).

Red Flags and Warning Signs

When to act immediately:

• Your visa is expiring soon and you haven't checked your super or TPD entitlements. In this case, you need to lodge any TPD claim before leaving Australia if possible because overseas claims have much lower success rates.

• Your super fund denies your TPD claim because you're a temporary resident. You should seek a second opinion or legal advice immediately in this case.

• You've left Australia without applying for DASP and it's been more than 4 months, as you're fast approaching the 6-month deadline after which your super becomes unclaimed money held by the ATO.

• Your condition is worsening and affecting your ability to work, but you're delaying seeking medical treatment. Early, comprehensive medical documentation is crucial for TPD claims as gaps in treatment often lead to rejection.

• You're being pressured to accept a low settlement or quick denial from your insurer. TPD claims are complex, and initial rejections are often overturned on appeal with proper representation.

Common mistakes to avoid:

• Waiting until after leaving Australia to lodge your TPD claim. It's much harder to get proper Australian medical evidence and attend insurer-requested examinations from overseas, resulting in higher rejection rates.

• Assuming your small super balance means no TPD benefits.TPD insurance is separate from your super savings and may provide substantial benefits even with minimal super savings.

• Providing only GP certificates without specialist reports. Insurers require comprehensive specialist evidence demonstrating permanent incapacity, and GP notes alone are almost never enough for approval.

• Missing the 6-month DASP deadline. Failing to apply for DASP within 6 months of leaving Australia means your super transfers to the ATO, leading to a more complex unclaimed money process.

• Not disclosing pre-existing conditions. Although pre-existing conditions don't automatically disqualify you, failing to disclose them (if asked during insurance sign-up) can void your entire claim.

When to Seek Legal Advice

In cases such as these, it is always recommended to get legal advice as quickly as possible, especially if:

• Your TPD claim has been denied or delayed beyond 3-6 months. Insurers often use delay tactics or incorrectly reject claims that would succeed with proper legal representation.

• Your condition is complex or involves mental health. These types of claims face higher rejection rates and benefit significantly from legal expertise when gathering appropriate medical evidence.

• You're unsure if your condition qualifies as "total and permanent." Policy definitions can vary significantly, and legal advice can clarify whether your specific circumstances meet your policy's requirements.

• Your injury or illness was caused by someone else's negligence. You may have both TPD entitlements and a separate compensation claim (such as common law for workplace negligence) in this case. Coordinating these claims maximises your total recovery.

Seeking early advice is crucial because:

• Understanding your full rights prevents you from missing critical deadlines or losing entitlements you didn't know you had.
• Access to rehabilitation and income support services often requires the proper lodging of a claim, so early action helps you financially and medically.
• Expert guidance protects your compensation claim from common pitfalls like inadequate medical evidence, missing limitation periods and accepting lowball settlements.

Key Takeaways

Remember these essential points:

• Temporary residents CAN claim TPD. Your visa status does not disqualify you from claiming insurance benefits through your superannuation, as long as you meet your policy's definition of total and permanent disability.

• Lodge your claim before leaving Australia. Although it is possible to make claims from overseas, they face much higher rejection rates due to difficulties obtaining Australian medical evidence and attending insurer examinations.

• TPD insurance is separate from your super balance. Even with small super savings, you may have significant TPD cover that provides a lump sum if you become permanently disabled.

• DASP has a strict 6-month deadline. You must apply for DASP within 6 months of leaving Australia with an expired visa, or your super (including any TPD payout) transfers to the ATO as unclaimed money.

• Medical evidence quality determines claim success. Comprehensive specialist reports addressing the permanence of your disability and functional limitations arising because of it are essential. GP certificates alone are typically insufficient for approval.

Get Help Now

If you’ve suffered a total and permanent disability while working in Australia as a temporary resident and you're uncertain about your rights or the best next steps, getting early legal advice helps you understand your options, hold your insurer accountable and get the financial support you're entitled to.

Problems with TPD claims while on a temporary visa can have a serious financial and emotional impact, particularly when you're unable to work, facing mounting expenses and far from home. You don't have to navigate this frustrating process alone.

Contact Smith's Lawyers today for a free, no-obligation consultation with lawyers experienced in TPD claims under our No Win, No Fee, No Catch® promise. 

You don't pay unless your claim succeeds, so call us on 1800 960 482 or use the form below to have our team contact you at a convenient time, and we'll assess your situation and guide you through the claims process.