HIV positive patients”What are the health requirements and health waivers under current migration law and policy?” Andrew Woo Migration Agent at Taylor & Scott discusses.
One cannot imagine the degree of devastation, anguish and shock felt by HIV (Human Immunodeficiency Virus) positive patients when receiving this news from their treating doctors. It would take a long while to digest those words and accept the bitter reality. First of all, they would think to themselves “why is this happening to me? or how am I going to deal with this from now on”. To add insult to injury, those people on temporary visas in Australia with HIV who are about to extend their visas or apply for permanent visas would have more worries about their uncertain futures because of further implications of HIV on their prospective visa applications. Although the visa would be the last thing on their mind in those unfortunate circumstances as priority would be of course directed to the management of the HIV depending on its progress, they will have to face the reality of there visa status sooner rather than later.
There is a widely held misconception that a visa (particularly permanent ones) will not be granted to a person who has been infected with HIV. This is not true nowadays because of the advance of scientific medicine, and also changes in the regulatory framework overseeing the health requirement in migration law. HIV/AIDS are now considered in many developed countries as a chronic condition rather than a fatal illness. Furthermore, there is an abundance of evidence to show that patients who commenced on HAART and comply with the strict regime will have a normal life-span. While each applicant is required to pass the health requirement under migration law, the threshold for each health requirement differs based on which particular subclass the applicant is applying under or which stream of that particular subclass the applicant is applying for.
Currently, the migration law provides three distinct types of health-related public interest criteria (PIC) – that is, PIC 4005, PIC 4006A and PIC 4007.
PIC 4005 – this is the standard health requirement and requires the applicant to suffer from a disease or condition where the potential costs to the Australian community is less than $40,000.00 for the visa period for temporary and permanent visa applicants.
How are the potential costs calculated ? and Who is responsible for giving advice in that regard?
For those patients who are already aware of their status, they are expected to declare that they are HIV positive in the health declaration section of the visa application form in a straight forward fashion. In cases where the Applicant gives misleading and incorrect information wilfully, any visa that has been already granted is liable to be cancelled under the Migration Act. Hence, one needs to take precautions when making a health declaration about his or her status because of this power held by the government to cancel the visa on the ground of incorrect information. It is true in some circumstances especially for temporary visa applicants that a HIV test may not be mandatory and the person may choose not to disclose to the government, but this should be avoided wherever possible.
Also, there may be some HIV positive patients who were previously unaware of their status and only found out at the mandatory testing. In the event that the government becomes aware that the person is HIV positive, a Medical Officer of Commonwealth (MOC) presumably, one of the doctors at Medibank Health Solutions, needs to provide an opinion as to whether the likely costs to the Australian community for health care services is more than $40,000.00 and ultimately give an opinion as to whether the health criteria has been met..
What are the costs for the treatment of HIV patients when giving this costing advice by a MOC?
This depends on a range of factors such as CD4+ T-cell count and type of medications for ART. According to ‘Notes for Guidance for Medical Officers of the Commonwealth of Australia – HIV/AIDS’ which forms part of Procedures Advice Manual 3, the person will not go on ART unless CD4+ T-cell count falls under 350 cells (one needs to bear in mind that CDE4+ T-cell is expected to decrease at a rate of 35 cells a year). If not on ART, the annual costs are below $2,300.00, which increases to the level of $13,000.00 to $16,000.00 per year as soon as the person commences the ART. It would be fair to say that rough estimates may be provided by taking into account these costs before the MOC provides his or her opinion, but no one can predict with a great degree of accuracy what the figures will be in the costing advice.
What visa subclasses have PIC 4005 as their health requirement?
As advised, this is the most standard health requirement of the three criteria. It would be impossible to list all of these in the discussion paper. Examples include SkillSelect visas (Subclass 189 and 190), Temporary Graduate Visa (Subclass 485), ENS visa (Subclass 186-Direct stream) and Student Visas (Subclass 573). What this means for the applicant who is HIV positive is that some temporary visas with shorter validities may be available for them if the lifetime of that particular visa is short enough to reduce the potential costs to less than $40,000.00. But, for permanent visa options such as SkillSelet visas (Subclass 189 and 190), one can say that the health requirement for HIV patients will never (or almost never) be met and their applications must be rejected on the health grounds.
PIC 4006A – this is similar to PIC 4005 in that it requires the applicant to be from a disease or condition the potential costs to the Australian community of which is less than $40,000.00 for the visa period for temporary and permanent visa applicants. It also provides for a waiver in circumstances where the likely costs exceed the $40,000.00 mark if the employer provides an undertaking to meet medical expenses relating to HIV conditions. PIC 4006 is only applicable to Subclass 457 visa, the maximum validity of which is 4 years.
What does this imply for HIV positive applicants who are considering the 457 visa scheme?
Depending on the level of the likely costing advice by a MOC, in many cases for those applicants who have already started the ART, the potential costs to the Australian community will be usually more than $40,000.00 for the maximum 4 years. If the employer is very open about providing an undertaking to meet medical expenses relating to HIV conditions, this visa option can be very attractive as the health requirement would be considered to be met. Most importantly, this lays down a pathway to permanent residency for those with HIV conditions under ENS.
PIC 4007 – this is the most relaxed health related PIC in that it provides for a waiver if the Minister or his or her delegate is satisfied that the granting of the visa would be unlikely to result in undue cost to the Australian community. Given that the likely costs for HIV positive applicants for permanent residency will be over $40,000.00 in nearly 100% of the cases; this PIC 4007 provides the most important pathway for these candidates.
What visa subclasses have PIC 4007 as their health requirement?
Typical examples that fall under this category are Partner Visas, RSMS Visas and ENS (Temporary Residence Transition Stream for 457 visa holders).
Under the policy, the Minister or his or her delegate who considers the exercise of the health wavier takes into consideration various factors.
For example, the applicant is expected to provide the following documentation and information for health waiver consideration for Partner Visas (the information below was extracted from PAM 3):
-
The English language skills of all applicants
-
Qualifications and work history of the applicant and the sponsoring spouse
-
Current employment or employment prospects for all relevant adults
-
Assets and other income of all relevant adults
-
Any skills or contributions to the community by the applicant
-
Whether there are Australian children who would be adversely affected by a decision not to waive the need to meet the heath requirement
-
The location and circumstances of the applicants and sponsor’s family members
-
The willingness and ability of a sponsor, family member or other person or body to provide care and support
-
What care arrangements are in place or what are the proposed care arrangements
-
Information regarding non-migrating applicants, including what arrangements have been put in place for their care, and what is the likelihood of them ultimately applying to migrate to Australia
-
Any factors preventing the sponsor from joining the applicant in his or her own country or in another country
-
Any other compassionate and compelling circumstance which may be relevant
The health waiver submission is one of the most complex and technical areas in migration law and this is why it is absolutely critical to seek professional expertise, assistance and advice as early as possible in order to give your application its best chance. We have represented a number of clients with similar issues in the past and take pride in understanding precarious situations and sensitive issues faced by clients.
ANDREW WOO (Registered Migration Agent No. 1383628)
Please insert photos of LNR and ASW
For more information, Contact Lachlan Riches (Registered Migration Agent No. 9473887) or Andrew Woo (Registered Migration Agent No. 1383628) on 1800 600 664 or complete the Contact Form on this page.
At Taylor & Scott “ We Care For You.”