Positive Life NSW

Brady reports on changes to the immigration review.

People with HIV have been barred from obtaining many types of visas. This is because all visas have health criteria. Anyone with HIV will fail the health criteria. The only visas an HIV positive person can successfully apply for are ones that allow for waiver of the health criteria.

Over the last year, significant changes have already occurred in immigration law and more may be on the way. These changes have affected both the range of visas allowing the health waiver, as well as the health costs for HIV positive applicants.

Visas and the Health Waiver

Until this year the health waiver was limited to a small range of visas that can be loosely categorised as ‘family formation’ visas. Partner visas are an example. In April, the health waiver became available to Employer Nominated Scheme (ENS) for permanent residency applicants seeking full-time employment in Victoria and the ACT. In May, WA was added to the list of states in which the waiver is available. The Employer Nomination Scheme allows employers to nominate people with ‘in demand’ skills for permanent full-time work. The nominated person may then apply for permanent residency.

Following the publicity surrounding the Dr Moeller case late last year, Bill Shorten Minister for Disabilities and Chris Evans Minister for Immigration announced a review into the health criteria. The terms of reference for the review were recently released.

Essentially, they recommend:

• Assessing the economic and social contribution of people with a disability and their families seeking to migrate to Australia.
• Estimating the impact on funding for community services for people with a disability.
• Determining the balance between the economic and social benefits and the costs and use of services by that individual.
• Reporting on a comparative analysis of similar migrant receiving countries.

Dr Moeller’s application for permanency (which was based on his skills as a medical doctor) was refused because his child had Down’s syndrome, and therefore failed the health criteria. This was based on the ‘one out all out’ principle, and as a consequence of one family member failing the health criteria all members of the family applying for a visa were refused. This case attracted considerable media attention late last year.

Immigration law is not subject to the Disability Discrimination Act. For years, it has uniformly engaged discriminatory regulations against applicants with disabilities seeking entry to Australia citing health criteria. The Federal Government is looking for ways to better implement Immigration law so it complies with Australia’s obligations under international conventions such as the Convention on the Rights of Persons with Disabilities.

Health Costs

Another perhaps less positive change over the last year has been the new policy guideline that estimates health costs for HIV positive applicants. The guidelines include some factors in estimating the likely costs for HIV treatment; however, the outcome may be that these will increase significantly. Recently our centre received estimates for HIV positive visa applicants that exceed the previously estimated cost of $250,000 over a lifetime.

It is uncertain whether the new guidelines are to blame, or whether there are anomalies or errors made by individual medical officers. These cases are yet to progress to review. The concern is that the new guidelines will result in significantly raising the estimated costs for HIV positive applicants and make other arguments less likely to succeed.

The current joint committee review will look into the adequacy and rationale for the health criteria and the various visa categories. This presents an opportunity for change and reform of the discriminatory immigration laws. The HIV/AIDS Legal Centre, Positive Life NSW and AFAO will be making submissions. It is hoped that the outcomes of the review give impetus to further reform and reduce discrimination.

Contact us!

HIV/AIDS Legal Centre (HALC)
9 Commonwealth Street, Surry Hills, Sydney NSW
Call: (+61) 2 9206 2060
Fax: (+61) 2 9206 2053
Mail: PO Box 350, Darlinghurst, NSW 1300
Website: www.halc.org.au

Brady is Principal Solicitor with HIV/AIDS Legal Centre (HALC)