Migration law and HIV
By Peter Papadopoulos
For years, people living with HIV/AIDS (PLWHA) have experienced difficulty obtaining temporary and permanent residence visas from the Department of Immigration Multicultural and Indigenous Affairs (DIMIA). The Medical Officer of the Commonwealth (MOC) appointed by DIMIA to assess health matters has been of the opinion that PLWHAs generally do not meet the applicable health criteria as set out in Schedule 4 to the Migration Regulations 1994 (Regulations), as, depending on their condition and length of stay, they are likely to present a significant cost to the community in terms of health care and / or community services. To date, DIMIA has been bound to follow the MOC opinions, rejecting many visa applications from PLWHAs.
In certain cases, including those involving interdependency, spouse, child and protection visa applications, DIMIA has the discretion to waive the applicable health requirement. However, most temporary and permanent residence visa applications are not permitted a waiver, so many HIV positive visa applicants are routinely denied visas.
Now, there is now renewed hope for HIV-positive visa applicants following the Federal Court decision in the case of K** v MIMIA [2005] FCA 429 on 15 April 2005. In summary, Mr K**, an HIV-positive Zambian citizen taking antiretroviral treatments, had applied to DIMIA for a two-year student visa to complete a Masters degree. DIMIA had refused Mr K**’s application because the MOC stated that a person with Mr K**’s condition - HIV - was likely to require health care during his proposed two year stay in Australia and that the cost to the Australian community would be significant. In determining exactly what types of “health care” would be required by a PLWHA such as Mr K**, and whether the cost of that care would be “significant”, the MOC added up the comparably high cost of antiretroviral treatment and the comparably low cost of quarterly blood monitoring and concluded that, together, these costs were significant. In the MOC’s opinion, Mr K**, had failed the health requirement and therefore DIMIA refused his student visa application. Mr K**, appealed the DIMIA decision to the Migration Review Tribunal (MRT) and was unsuccessful because a Review Medical Officer of the Commonwealth (RMOC) did not depart from the MOC’s opinion. Mr K** appealed to the Federal Court.
In a landmark decision, the Federal Court found in favour of Mr K**. A single judge, Justice Finkelstein, concluded that the MOC had made an error when assessing whether or not Mr K**, had met the applicable health requirement. Finkelstein J concluded that the cost of antiretroviral and other Pharmaceutical Benefits Scheme medications could not be regarded by the RMOC as "health care" costs where those medications are merely prescribed by a doctor and self-administered by a patient. In his reasoning, Finkelstein J explained that the term "health care", as it appears in the Regulations, involves a level of care requiring "an element of personal attention or activity" by a health care provider. The judge noted that as most PLWHAs largely self-administer their own medications, the cost of those medications could not be considered as “health care” for the purposes of the applicable health requirement. By contrast, the monitoring of a PLWHA’s viral levels did fall within the meaning of "health care" because the judge was of the view that this process involved personal attention from or activity by a doctor, nurse or other health care provider to run the required pathology tests.
In considering whether the mere quarterly monitoring of viral levels would result in a “significant cost” to the Australian community over the two-year period, Finkelstein J noted that as the annual cost of blood monitoring is normally in the order of $400-$500, the significant cost threshold had not been reached in Mr K**’s case. Accordingly, the RMOC’s opinion in K** was found to be invalid and the MRT’s decision to affirm DIMIA’s decision to refuse Mr K**’s visa application was overturned.
| STOP PRESS: The full Bench of the Federal Court handed down its ruling on 29 September, overturning the previous decision. This means that the cost of medication is included in "health care". For further information, contact the author. |
The current law in Australia is that the MOC and RMOC can only reach a legally valid opinion in relation to an HIV-positive visa applicant where health care costs calculations only include treatments that require direct personal attention from a health care provider. This is particularly the case where hospitalisation and end-of-life costs are unlikely to be incurred because the visa applicant is likely to remain relatively healthy during their period of stay in Australia.
Given the far-reaching implications of Finkelstein J’s decision in K**, it is not surprising that DIMIA appealed this decision to the Full Federal Court. A hearing was held before the Full Federal Court (Chief Justice Black, Justice Heerey and Justice Weinberg) on 17 August 2005. Until the Full Federal Court hands down its decision, the definition of health care in the Regulations remains in dispute and unsettled.
Peter Papadopoulos is a solicitor and registered migration agent based in Melbourne who specialises in complex migration matters, particularly those involving HIV-positive visa applicants. He can be contacted on (03) 9328 5656.
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