The Australian immigration system has strict health requirements for all people applying for permanent residence. However in some cases HIV positive people may still succeed in obtaining permanent residence. These articles explain the Australian immigration system and provide advice on submitting applications.

AFAO Factsheet July 2004 (Last updated 23 July 2008)

Applying for permanent residence in Australia

Information for people with HIV/AIDS and their advisors

The information in this Factsheet is correct as at July 2008. However immigration regulations and procedures change from time to time; therefore some of the information in this guide may have changed since it was written. You should check before you act on this information. AFAO cannot assume responsibility for errors in this guide or their consequences.

Immigration and HIV/AIDS

The Australian immigration system has very strict health requirements for all people applying for permanent residence, designed to minimise costs to Australia’s health care and welfare system. People are regularly excluded from migrating to Australia on a wide variety of health grounds.

Therefore all applicants are tested for HIV, and HIV status will be taken into account in deciding on your application for permanent residence. However there is no automatic exclusion on people with HIV/AIDS. A considerable number of people with HIV/AIDS have succeeded in obtaining permanent residence in Australia. It will depend on your individual circumstances. This article explains how the system works.

Classes

To become a permanent resident in Australia, you must fall into one of the classes set out in the Migration Regulations eg. spouse, de facto spouse, interdependency, refugee etc. All classes have strict requirements that must be satisfied in every case, including health requirements.

Interdependency

Over 80 percent of people living with HIV/AIDS in Australia are infected through homosexual sex. Therefore it is to be expected that a significant proportion of HIV positive applicants for permanent residence will be gay men in relationships with Australian citizens. (However there are also considerable numbers of HIV positive applicants who are not gay).

Gay relationships are recognised by Australian immigration law under the “interdependency” class, but only if one partner is an Australian citizen, permanent resident or eligible New Zealand citizen. This article does not deal with the requirements of interdependency. Any person proposing to apply on these grounds – whether HIV positive or not – is advised to obtain further information from the Gay and Lesbian Immigration Task Force (GLTF)(see contacts listed below).

HIV Testing

All applicants for permanent residence aged 15 years or over are required to have an HIV test. In addition, children under 15 are tested where they are to be adopted by an Australian resident, where they have a history of blood transfusions, or where it is clinically indicated.

The HIV test takes place as part of the process of medical examination undertaken by all applicants for permanent residence. People applying within Australia must see a Medical Officer for the Commonwealth. You will be advised of arrangements for HIV testing when you make the appointment for your medical examination.

Health Requirements

As a matter of practice, a positive test result will mean that you do not meet the strict health requirements. The health requirements apply to all classes of permanent residence, except for refugee applicants applying within Australia. Where other family members are included in your application (e.g. spouse and/or children) all members of the family unit must meet the health requirements.

Waiver

The health requirements may be waived in certain circumstances set out in the regulations. The Waiver is available for a very limited number of classes. For example the waiver is available for those applying under the following classes:

• spouse (including de facto spouse) of an Australian citizen or permanent resident;
• fiancé(e) of an Australian citizen or permanent resident;
• interdependency (which includes a gay or lesbian partner of an Australian citizen or permanent resident);
• dependent child of an Australian citizen or permanent resident;
• former citizen of Australia;
• “refugee” type applications.

The waiver is not available for other classes of applicants, including:

• Parents of Australian citizens/permanent residents;
• Preferential family and concessional family;
• Business skills.

Check with the Department of Immigration and citizenship (DIAC) to confirm whether the waiver is available for your class of application. If the waiver is not available for your class of application, it is legally impossible for your application to be approved.

If your application is in one of the classes that have access to the waiver, and you do not meet the health requirements, the DIAC must then consider the question of whether to waive the health requirements. This is an integral and necessary part of the Department’s decision-making process.

How the Waiver works

The health requirement can only be waived if you meet all the other criteria for grant of the visa or entry permit applied for.

Before waiving the health requirements, the DIAC must be satisfied that the granting of the visa would be unlikely to result in:

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

The Department must also be assured that the granting of the visa would not represent a public health or safety risk. The Department of Health and Ageing has ascertained that access to HIV services is not of concern at present, so this part of the health waiver procedure does not present a problem.

Undue cost

The main issue for people with HIV/AIDS is whether there will be ‘undue cost’ to the Australian community. In each case, the DIAC will obtain an estimate of the overall lifetime cost to Australian public funds of treatment, care, social security, housing etc. DIAC is required to obtain the cost estimate from a Medical Officer for the Commonwealth within the Department of Health and Ageing. In the past this figure has been in the region of $250,000. It is not open to DIAC to dispute or review the cost estimate provided by the Medical Officer for the Commonwealth. The Migration Regulations require DIAC to accept the opinion as to costs as correct.

It is then up to DIAC to decide whether the cost is undue. In making this decision, DIAC officers have been instructed that they should consider 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 and interdependency 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. Assessment of this criterion should not be rendered inaccurate by false analogy with an applicant’s present circumstances. For instance, the fact that an applicant does not currently rely on such services may be due to non-availability, or to cost, or to the applicant’s state of health now as distinct from what it will be likely to be in the future.
• 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 to provide 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.

What evidence should you include?

It is important that you include as much evidence as possible to enable the Department of Immigration to make an informed decision on the exercise of the waiver. The Department of Immigration will not necessarily ask you for this information; you need to include this material in your application.

It is suggested that the following questions should be addressed:

What is your current health situation? (A detailed report from your own treating doctor would be useful).

• How long have you been HIV positive?
• Are you currently receiving any treatment?
• What is your prognosis?
• Were you infected in Australia?
• What evidence do you have of this?
• What is the situation for people with HIV in your home country?
• Is there persecution of or discrimination against people with HIV in your home country?
• If so, is there independent documentation available?
• Have you personally experienced discrimination? (Specify)
• Is treatment readily available in your home country?
• What support mechanisms do you have in your home country?
• Does your family know that you are HIV positive?
• If you are gay, what is the situation for gays in your home country?
• Are you working, or have you been offered employment in Australia?
• How much do you earn?
• If you are in Australia, do you pay tax?
• For how long do you anticipate working?
• Do you have private health insurance?
• Can your partner/family/sponsor provide care for you if you become ill?
• Are you / your partner/family/sponsor in a position to meet the cost of treatment, hospitalisation and care?
• Will you become dependent on Australian Social Security?
• Do you have a child/children?
• Is your child HIV positive?
• Is your child an Australian citizen?
• What will be the impact on your child if you are not granted permanent residence?
• Is your child dependent on you for financial support?
• Are you (or your partner) pregnant?

If you are applying on the basis of marriage, de facto relationship, interdependency, also address:

• What will be the impact on you, your spouse or partner, or your family, if you are not allowed to live in Australia?
• Would it be possible for your partner to live with you in your country, or some other country?
• If not, why not?
• Would this necessarily mean a forcible separation of you and your partner?
• What would be the impact on your partner if they were required to live in your country? Can they speak the language?
• Could your partner work in your home country?
• Does your partner have other family obligations in Australia?
• What standard of health care, accommodation etc. would be available to your partner in your country?
• Is your partner also HIV positive?
• If your partner is not HIV positive, what steps have you taken to ensure that he/she does not become positive (e.g. safe sex)?
• If your partner is HIV positive, what treatments etc. will be available to him/her in your home country?
• How did your partner react to the disclosure that you were HIV positive?

You should give as much detail as possible about all these questions which are relevant to you, and any other matter which you think should be taken into account in your favour. You should make a statutory declaration about these matters, and statutory declarations should be obtained from your partner and other relevant family members.

Appeals

If your application is rejected, you may have a right to apply for a review of the decision by the Migration Internal Review Office, or the Migration Review Tribunal. In certain circumstances it may also be possible to seek a review by the Federal Court of Australia. You should get advice from a migration agent or lawyer. Legal aid may be available to assist with your appeal, depending on the circumstances.

Getting help

It is probably important that you get assistance in preparing your application and compiling the necessary evidence to maximise the chance of success. The following organisations may be able to assist or to put you in touch with a migration agent or lawyer with experience in this field.

HIV/AIDS Legal Centre (NSW) (02) 9206 2060

Gay and Lesbian Immigration Task Force (GLITF) Offices:

GLITF NSW (02) 9283 4031

GLITF Qld (07) 3367 0731

GLITF Victoria 0431 738 526 E-mail:info@glitfvic.org.au

Department of Immigration and Citizenship

Migration Agents Registration Authority

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HIV and immigration law

In light of the recent debates surrounding immigration, PATRICK MOHAN examines the current state of immigration law for HIV positive clients wanting to seek permanent residency in Australia.

Australia’s immigration program is regulated by the operation of the Migration Act 1958 and accompanying Migration Regulations. Under this legislation, all applicants for permanent visas and some temporary visas must undergo screening for HIV. This requirement is found in Schedule 4 of the Migration Regulations and is known as “the health requirement”. Under this legislation, if an applicant fails the health requirement, the visa application is refused. There are however, a number of visa applications where this requirement may be waived if it can be shown that the applicant’s medical condition would not result in undue cost to the Australian health care system. Applications in which the health requirement may be waived include those made on the basis of a spousal, de facto or interdependent (usually same-sex) relationship as well as child and adoption visas and some refugee and humanitarian visas. This paper will examine the health requirement as it applies to HIV positive visa applicants and the operation of the health waiver for spouse and partner applications.

The health requirement
Under the health requirement, visa applicants must be free of tuberculosis and free from a disease or condition that is, or may result in, the visa applicant being “a threat to public health in Australia or a danger to the Australian community.” The test is then expanded to cover applicants who have a disease or condition that is likely to either:

• Require health care or community services; or
• Meet the medical criteria for the provision of a community service, during the period of the visa applicant’s proposed stay in Australia.

The applicant will also fail the health test if the provision of the health care or community services relating to the disease or condition would be likely to:

• Result in a significant cost to the Australian community in the areas of health care and community services; or
• Prejudice the access of an Australian citizen or permanent resident to health care or community services, regardless of whether the health care or community services will actually be used in connection with the applicant.

In addition to these criteria, the visa applicant may be to required to undertake follow-up medical assessments if requested by the Medical Officer of the Commonwealth.

HIV screening
HIV screening is required for all applicants for permanent visas who are 15 years of age or older. Children less than 15 must be tested if there is a reason to suspect HIV infection, for example, on clinical grounds, a history of blood transfusions or of haemophilia or if the mother or father is HIV seropositive. As of 1 July 2001, the Department of Immigration introduced a 12-month pilot program requiring all persons aged 15 or over from sub-Saharan Africa who apply for student visas for a stay of 12 months or more to undergo a HIV test as part of their medical examination. This program only applies to applications made at certain Consular posts in Africa. Applicants for other temporary visas may be asked to undergo HIV testing only if signs of HIV/AIDS are present.

The health requirement and HIV
If a visa applicant declares his or her HIV status on the medical examination form and/or the required blood test shows that the applicant is HIV seropositive, the visa processing officer will refer the case to the Medical Officer for the Commonwealth for an opinion as to whether the visa applicant will meet the heath test. Once that opinion is given then, based on the opinion, the visa applicant will fail the health requirement and the visa will be refused, unless the health requirement is waived. If the visa is refused then the applicant can appeal the refusal on the basis that the health requirement should have been waived, and seeking orders to that effect. It is important to understand how the Medical Officer of the Commonwealth reaches his or her decision with respect to HIV positive visa applicants and how Departmental policy defines the relevant terms.

• In general, for permanent visa applicants, ‘costs’ will be assessed over a five-year period. ‘Significant cost’ is defined at a level 50 per cent above the average per capita health care and community services costs for Australians for 5 years. This amount is about $16,000 with 65% certainty.
• ‘Community services’ includes supported accommodation, home and community care, special education and income support such as Special Benefit, Disability Support Pension and Carer’s Pension.
• ‘Prejudice to access’ relates to those applicants who are likely to pose a substantial or extensive level of prejudice, such as organ transplants (extensive prejudice) or expensive on-going treatment, such as use of blood products, radiotherapy, haemodialysis or nursing home/residential care placement.

Recent decisions of the MOC put the current cost of HIV anti retroviral therapy at approximately $15,000 per year and $250,000 over a lifetime. This far exceeds the policy definition of ‘significant costs’ of $16,000 over five years with 65 per cent certainty. It can be assumed therefore, that all HIV positive visa applicants will fail the health test and that applicants for spouse/partner visas or child/adoption visas must seek a waiver of the health requirement under item 4007 of Schedule 4.

The health waiver
The health waiver is found in part 2 of item 4007 and may be exercised by the decision maker in the following circumstances:

• The visa applicant satisfies all other criteria for the grant of the visa; and
• The decision maker is satisfied that the granting of the visa would be unlikely to result in the undue cost to the Australian community or undue prejudice to health care or community services of an Australian citizen or permanent resident.

Assuming therefore that all other criteria have been satisfied, a HIV positive visa applicant must convince the decision maker that the cost of therapy or health care for the treatment of their condition will not create an undue burden on the Australian health care system.

Practical aspects of the health waiver
The word “undue” is defined in the Macquarie Dictionary (2nd Edition) as “unwarranted, excessive…not proper, fitting or right; unjustified” and the Concise Oxford Dictionary includes “disproportionate” in its definition. The question to be asked by the decision maker is therefore not whether there will be a public cost associated with the applicant’s condition, as it is accepted that HIV positive people will be likely to use public health services. The question to be asked is whether the applicants condition will result in an “undue cost”. Departmental policy on the operation of the health waiver provides a number of circumstances in which public health costs will not be “undue” and the health waiver may be exercised. It is not sufficient to waive the health requirement simply upon the basis of the relationship between the applicant and their sponsor. The must be circumstances which go beyond the threshold criteria for the grant of the visa. Factors taken into account in the exercise of the health waiver include:

• The extent of health care likely to be required in Australia.
• The willingness and ability of a sponsor, family member or other person to provide care and support at no 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.

There had been a reluctance by the Department of Immigration & Multicultural Affairs to exercise the health waiver in the case of HIV positive applicants. These visa refusals may however, be appealed to the Migration Review Tribunal (MRT). Recent decisions of the MRT provide a practical perspective on the operation of the health waiver with respect to HIV positive visa applicants and a ventilation of the concept of “undue cost and prejudice”. The MRT has exercised the health waiver in a number of recent cases. Factors that are taken into account by the Tribunal in considering the exercise of the waiver include:

• The current state of the visa applicant’s health. A detailed medical report from the applicant’s own physician should be provided. This report should include a prognosis of the applicant’s current condition and the doctors own estimate of the likely cost of medication over the applicant’s lifetime.
• The financial ability of the applicant and sponsor to pay for any further health costs associated with the illness. In this case, full financial statements and tax returns for both the applicant and sponsor should be provided to the Tribunal.
• The ability of the applicant (and sponsor) to work and pay for his or her medication and medical costs. This shows a contribution through taxation to the Australian community and identifies the applicant as an “educational and occupational prospect”. Also, a favourable situation would be if the applicant owns (or intends to own) a business and employs Australian citizens or permanent residents.
• If the applicant has private health insurance which will contribute to the cost of treatment.
• The visa applicant’s ties with the Australian community. This includes the willingness of family and friends to support the applicant in Australia. These people can attend the Tribunal hearing to show their support for the applicant.

The decision maker will take into account the above circumstances in order to make an assessment as to whether of the potential cost to the Australian community is “undue” and will then decide on the exercise of the health waiver.

Conclusion
Spouse and Partner visa applicants who are HIV positive can be certain of failing the health requirement under item 4007 of Schedule 4. There is however, scope for waiver of this requirement. In order to exercise the waiver, the Immigration Department (or Migration Review Tribunal) must be convinced that the cost of treatment does not present an undue cost to the Australian public health system. Recent Tribunal cases indicate that well prepared applications, containing solid evidence of the financial ability of the applicant and sponsor to pay for therapy as well as close ties to Australia, are succeeding in obtaining an exercise this waiver. It is unfortunate, however, that applicants without adequate financial resources often cannot meet the policy requirements for exercise of the waiver.

Patrick Mohan is a solicitor.

This article was originally published in the National AIDS Bulletin, September 2001.

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