Migration law and HIV/AIDS: “A door closes, but a window opens”

By Peter Papadopoulos

2005 was a challenging year for the Department of Immigration and Multicultural Affairs (DIMA).  Subject to an inordinate amount of critique from the media and sections of the broader community, particularly in relation to the circumstances surrounding the detention of Cornelia Rau and deportation of Vivian Alvarez, DIMA has recently committed itself to “culture change” and declared that “people are our business”.   This flurry of media interest recently extended to the plight of people living with HIV/AIDS (PLWHA) and their difficulties obtaining visas from DIMA. 

A recent edition of HIV Australia (Vol 4 No 3) contained a report on a significant Federal Court decision made by Justice Finkelstein that gave hope to PLWHAs seeking to obtain temporary and permanent residence visas from DIMA.  In order to appreciate these difficulties, it must be understood that the Medical Officer of the Commonwealth (MOC) appointed by DIMA 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 DIMA has been bound to follow lawful MOC opinions, thereby rejecting many visa applications from PLWHAs.  While DIMA has the discretion to waive the applicable health criteria in certain cases, including those involving interdependency, spouse, child and protection visa applications, most temporary and permanent residence visa applications are not permitted a waiver, so many PLWHAs are routinely denied visas. 

Accordingly, PLWHAs welcomed Justice Finkelstein’s decision that was handed down on 15 April 2005 in which His Honour held, among other things, that the cost of antiretroviral and other Pharmaceutical Benefits Scheme (PBS) medications could not be regarded by the MOC as “health care” costs where those medications were 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.  His Honour noted that as most PLWHAs largely self-administer their own medications, the cost of those medications could not be considered as “health care”. His Honour did concede that the monitoring of viral levels did fall within the meaning of "health care" because such monitoring involved personal attention from or activity by a doctor, nurse or other health care provider to run routine quarterly HIV-related pathology tests. Finkelstein J concluded that the MOC’s opinion that the cost of treating an HIV-positive person was “significant” was invalid because it erroneously included a consideration of the cost of antiretrovirals and these could not be regarded as a component of “health care”.  His Honour also indicated that the mere cost associated with quarterly monitoring of viral levels could not be regarded as “significant”, thereby justifying the argument that the MOC’s opinion was invalid and could not be relied upon by DIMA, or any other decision-maker such as the Migration Review Tribunal (MRT), to reject a PLWHA’s visa application on health grounds.

Concerned about the prospect of being required by law to grant visas to PLWHAs and other people living with diseases or conditions whose treatment could involve the use of seemingly expensive PBS medications, the Minister for Immigration appealed Justice Finkelstein’s decision to the Full Federal Court.  On 29 September 2005, the Full Court (Chief Justice Black, Justice Heerey and Justice Weinberg) overturned Finkelstein J’s decision and held that the term “health care” was broader than the construction proposed by Justice Finkelstein and that it necessarily included treatments such as PBS medications, including antiretrovirals.  In its reasoning, the Full Court suggested that the term “health care” was a composite expression, such that the words “health” and “care” should be read together when deciphering the term’s meaning in the context of the Regulations.  In examining the scope of the term’s meaning, the Full Court quoted the definition of “health care” in the Macquarie Dictionary as “the provision of medical and other services for the maintenance of health, prevention of disease etc”. 

While the Full Court agreed with Finkelstein J that “health care” involved the provision of care by a health care provider to a visa applicant, it doubted that such care necessarily required “an element of personal attention or activity” by the provider.  The Full Court chose not to define the ambit of the term, but held that “health care” did include the prescription of medication by a legally qualified medical practitioner and the dispensing of that medication by a pharmacist.  The Full Court dismissed Finkelstein J’s consideration of the fact that most PLWHAs self-administer their medication by indicating that self-administration of medication could not sensibly be isolated from the total treatment process that included the earlier prescription and dispensation of that medication by health care providers.  Moreover, the Full Court regarded the prescription and dispensation of antiretrovirals as a necessary part of the process of monitoring viral levels, which was unarguably “health care”.  Accordingly, the Full Court found in favour of the Minister indicating that there was no legal basis for an argument, based upon Justice Finkelstein’s reasoning, that PLWHAs could meet the applicable health criteria.

The Full Court’s decision received unexpected media attention and aroused debate both in Australia and overseas.  The decision was reported in numerous leading Australian and international newspapers, on media syndicate news websites and was the subject of debate in many internet forums and chatrooms.  In many of these publications, the identity of the HIV-positive person who was the subject of the case was clearly revealed.  In order to protect their client’s privacy, solicitors acting for the HIV-positive person in question applied to the Full Court seeking an order forbidding publication of their client’s name in any future publicity about the case. 

On 13 October 2005, the Full Court made an order forbidding the publication of the person’s name, unless that publication was made by or on behalf of the person in question or DIMA.  Since 13 October 2005, the person in question has been referred to in various publications as X.  While the Full Court maintained that the operation of the law on PLWHAs was a matter of public interest, it held that X’s identity was not.  Cognisant of the distress and embarrassment X suffered as a result of the media attention, and mindful of the need to ensure that PLWHAs and other people suffering from diseases and conditions to which public stigma attaches would not be dissuaded from similarly taking legal action in future, the Full Court readily acceded to X’s request.  Unlike situations where companies have unsuccessfully sought similar orders where confidential and commercially sensitive information has been leaked into the public domain, the Full Court made the order because “each further publication can inflict a new wound” upon X.

While the privacy rights of PLWHAs were championed by the Full Court, albeit a little late in this instance, the hopes of many PLWHAs seeking Australian visas appeared to be dashed.  However, there is now renewed hope for PLWHAs seeking Australian visas following another recent Federal Court decision in the case of Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626 (“Robinson”).  In summary, the visa applicant in Robinson was an eight year old boy with Down’s Syndrome.  The boy’s treating doctor had provided a report to the MOC describing the level of the boy’s condition as “mild”.  Despite this, DIMA refused the boy’s permanent residence visa application because an MOC concluded that a person with his condition would be likely to require special education and allied therapies during his lifetime and that this would result in a significant cost to the Australian community.  Despite appeals to the MRT by the boy’s family, the MRT affirmed DIMA’s decision.  The appeal to the MRT was unsuccessful because a Review Medical Officer of the Commonwealth (RMOC) provided a similarly adverse opinion in relation to the boy.  The boy’s family then appealed the MRT’s decision to the Federal Court. 

On 10 November 2005, Justice Siopis handed down a decision in favour of the boy.  His Honour held that the MRT had made a jurisdictional error by failing to apply a correct statutory test. His Honour also found that it was possible that the MRT was relying upon an RMOC opinion that was invalid. His Honour uncategorically explained that both the MOC and RMOC are required by law to ascertain the particular form or level of disease or condition suffered by a visa applicant and then assess whether the provision of health care or community services to a hypothetical person with that particular form or level of disease or condition would result in a significant cost to the Australian community.  Justice Siopis’ reasoning in Robinson was accepted and followed by the Federal Magistrates Court on 14 December 2005 in its decision in the case of Ramlu v Minister for Immigration & Anor [2005] FMCA 1735 and in subsequent court decisions. 

The implications of Robinson are far-reaching for PLWHAs seeking either temporary or permanent residence in Australia.  To date, almost all MOC and RMOC opinions provided in relation to PLWHAs seeking permanent residence have specified that it would cost in the order of $240,000 to treat a PLWHA over their lifetime in Australia.  This generic lifetime cost estimate makes no specific reference to various factors that would ordinarily determine a PLWHA’s lifetime treatment costs estimate, specifically the particular form or level of the PLWHA’s condition, their seroconversion date and age.  PLWHAs, their partners, families, treating health care professionals and state and national HIV/AIDS organisations have argued for some time that this estimate of $240,000 is over-inflated and too generalised.  DIMA has maintained that this estimate is correct, being based on an understanding that all PLWHAs will require the same antiretroviral treatment approximately 10 – 14 years after the date of their seroconversion and incur the same end-of-life hospitalisation costs.  While this generic lifetime cost estimate may apply in some cases, it can no longer be maintained that it applies invariably.  Robinson now provides good legal authority to challenge the generic nature of such adverse MOC and RMOC opinions. 

It follows that the opinion of an MOC or RMOC in relation to a PLWHA can only be lawful where it ascertains the particular nature of the PLWHA’s condition and provides a cost assessment accordingly.  Therefore, it would be difficult for an MOC or RMOC to form a lawful adverse opinion in relation to a PLWHA seeking a temporary visa, especially where the PLWHA is relatively healthy and therefore unlikely to require antiretroviral treatment or hospitalisation during their proposed temporary stay in Australia.  Furthermore, it now appears to be increasingly difficult for an MOC or RMOC to form a lawful adverse opinion in relation to a PLWHA seeking a permanent visa where there is evidence that the PLWHA has a good prognosis, is not taking antiretrovirals and it is reasonably foreseeable that they will not require antiretrovirals until a date that is well beyond ten years after they seroconverted. If anything, Robinson now provides a clear signal to DIMA to ensure that the opinions provided by MOCs and RMOCs will, in both form and substance, be made on a case-by-case basis.

Peter Papadopoulos is a solicitor and registered migration agent based in Melbourne who specialises in complex migration matters, particularly those involving PLWHAs, their families and employers. He can be contacted on ( 03) 9328 5656.