Positive Life NSW

HIV positive migrants who have been denied a visa to live in Australia may have a new avenue of appeal following a recent court ruling. The Federal Court of Appeal has ruled that medical reports used by the Department of Immigration must be made within a reasonable timeframe, such as 12 months.

HIV positive people require a health waiver if they are applying for a visa that allows for such a waiver, according to Iain Brady, principal solicitor at the HIV/AIDS Legal Service, who represented the client in the recent ruling.

“All visas have health criteria and some of the visa types have a health waiver, meaning that if you haven’t met the criteria it can be waived and you’ll be given a visa anyway,” Brady told SX. “Visas with health waivers are a temporary 457, which is a business or working visa. Permanent ones with a waiver tend to be family-type visas, so relationships, spouse, interdependent visas.”

Until the ruling the Department had been relying on medical assessments that were out of date and did not reflect an applicant’s current health status, Brady said. “We’ve had clients who’ve put in submissions for health waivers and they’ve waited five years for a decision. That’s not unusual and even longer as well.”

The ruling means that HIV positive migrants whose applications for a visa have been denied will now be able to appeal against the decision if their application was denied on the basis of outdated medical assessments, Brady said.

Previous rulings have ordered that a person’s individual health circumstances must also be taken into account, instead of the Medical Officer of the Commonwealth supplying the same report for everyone with a particular disease.

“[They can’t] just say, ‘You’ve got cancer, all cancers are the same and you’re going to fail’, and the same applies to HIV,” Brady said. “Bit by bit the courts are saying, ‘You’ve got to do what the [regulations] say and look at the individual circumstances of the client and in a timely manner’.”

14 May 2008 www.sxnews.com.au