Can HIV Positive Applicants Apply for Permanent Residency in Australia?

The general immigration programme in Australia is governed by the Migration Act 1958. Under this legislation, the residency application process in Australia is modeled on a strict health requirement regime. Applicants are required to undertake a mandatory health check to filter those that are afflicted with tuberculosis or a condition that may result in the applicant being a public health threat to the Australian community. The applicant will fail this test requirement if the disease or condition will put an undue cost burden to the Australian community in the areas of health care and community services or compromise the public’s access to such services.  Consequently, it follows that HIV positive applicants will usually be refused of their visa application. However, the health requirement may be waived for a HIV positive applicant if it can be demonstrated that the applicant’s medical condition would not result in an undue cost or burden on the Australian Health Care system.

Once a visa applicant declares his or her HIV status on the medical examination form, and the required blood test shows that the applicant is HIV-positive, the visa processing officer will then refer the case to the Medical Officer for the Commonwealth for an opinion as to whether the visa applicant will meet the heath test. Ordinarily, the opinion will result in the application being refused unless the health requirement is waived. At this stage it is also useful to note that even if the applicant’s body is still producing antibodies to fight to virus, the viral load is irrelevant to the application; so long as an applicant is tested positive for the virus, he or she will usually fail the health requirement test. However, this decision may be challenged on the basis of having the health requirement waived. Waiving the health requirement depends heavily on cost assessment by the Department of Immigration and Citizenship (“DIAC”). DIAC is required to obtain the cost estimate from a Medical Officer for the Commonwealth within the Department of Health and Ageing.

The Migration Regulations require DIAC to accept the opinion as to costs as being correct. It is then up to DIAC to decide whether the cost is undue. In making this decision, the main factor to be taken into account is the extent of social welfare, medical, hospital or other institutional or day care likely to be required in Australia. This is usually a complex procedure. Applicants seeking the health requirement waiver are strongly advised to seek professional help so that proper evidence is included to enable DIAC to make an informed decision on whether or not to exercise the waiver. Therefore, as the primary assessment is the cost of the condition when accessing health care and community services, HIV positive applicants have an opportunity to put forth their case and prove that their condition will not jeopardize the Australian community’s access to such services. This will depend on the individual merits on the case. Therefore, it is important for applicants to present their case fully and address the specific circumstances of their case.

If the application is rejected, applicants at this stage may have the right to have the decision reviewed 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. Relevant advice can be sought from an accredited migration agent or lawyer. Legal aid may also be available to assist with an appeal, depending on individual circumstances.

At Berrigan Doube Lawyers, our accredited and dedicated migration team will assess your immigration needs and provide the best advice in relation to your individual circumstances.