Australian Immigration Daily News

What is the likely outcome if your client is HIV positive and the client, applies for a visa for which no “health waiver” is available?

That would be the case if the visa sought is subject to PIC 4005, for which no waiver is available, instead of PIC 4007, from which a waiver is available?

Both PIC 4005 and PIC 4007 provide that the applicant must be free from a disease or condition for which the provision of health care or community services would be likely to result in significant cost to the Australian community in the areas of health care and community services, or prejudice the access of Australian citizens or permanent residents to health care of community services, regardless of whether the health care or community services will be used by the visa applicant.  The waiver of PIC 4007 is available if it can be shown that the cost of the health care or community services that will be needed by the applicant will not be “undue”.

A decision that was handed down last Friday by Judge Lucev of the Federal Circuit Court, Mai v Minister for Immigration & Anor (2016) FCCA 2901 (11 November 2016) indicates that a person who is HIV positive but who is otherwise healthy will not be able to get a visa to which the non-waive able health criterion embodied in PIC 4005 applies.

The circumstances in the Mai case were as follows:

The applicant was a citizen of Vietnam. He had lived in Australia for 11 years by the time his case came before the Tribunal, and the Tribunal observed that he had effectively “grown up” in Australia, both personally and professionally.  In February 2014, he applied for a “Skilled Residence” visa that was subject to PIC 4005. About a year before the visa application was submitted to the Department, the applicant was diagnosed as being HIV positive.

In support of his application, the applicant submitted a report from an infectious diseases consultant at the Royal Perth Hospital.  That report stated that the applicant was “asymptomatic” from his HIV infection, and was also free of any “opportunistic infections”.  The consultant’s report also stated that the applicant’s overall prognosis was “excellent”.

That report was not sufficient to enable the applicant to satisfy the health criterion stated in PIC 4005.

After the visa application was refused on health grounds in the first instance by the Department, and the applicant sought merits review in the Tribunal, a further opinion of the Medical Officer of the Commonwealth was sought.

Unfortunately for the applicant, while the opinion of the review Medical Officer stated that the applicant was “stable and asymptomatic on the current management of anti-retroviral therapy”, nonetheless, as his condition was likely to be permanent, and as a hypothetical person with the condition at the same severity as the applicant would be likely to require specialist health   monitoring and management with costly lifelong antiretroviral therapy, he did not satisfy PIC 4005.

The Tribunal thus affirmed the refusal of the visa application.  In reaching this conclusion, the Tribunal found that the applicant’s personal circumstances were not relevant to questions such as the cost to the community of the health services that he would require. 

Judge Lucev of the Federal Circuit Court concluded that there had been no jurisdictional error by the Tribunal, and that in fact the approach that the Tribunal had taken to the case was entirely “orthodox”, or routine.

The Court held that it is indeed correct for the review Medical Officer to have regard not to the applicant’s specific personal circumstances, but rather only to those of a “hypothetical person with the applicant’s condition”.

And indeed, as the Tribunal had observed, it was bound under regulation 2.25 to take the opinion of the Medical Officer of the Commonwealth to be correct, provided that the MOC had applied the correct test in forming her or his opinion, namely:

• Identify the medical condition in question to which the health PIC is being applied;
• Identify the “form and level” of the condition suffered by the applicant; and
•  Apply the statutory criteria (as to whether provision of health care or community services would be likely to result in significant cost.

This is the approach to applying the health criterion that is enshrined in the leading cases of Robinson v MIMIA and Ramlu v MIMIA.

Since the Tribunal had followed that approach, the applicant’s case went down in flames.  This was so even though the applicant’s current health care costs were estimated to be about $12,000 per year (and thus would be considered “significant” under current Department policy as exceeding the policy threshold of $40,000 over the expected period of the applicant’s stay in Australia), and in spite of the applicant’s claims that there would be risks to his health and safety if he were to  return to Vietnam, due to possible discrimination resulting to his sexual orientation and the limited availability of treatment for his condition.

So the result in this case teaches us that even though the prevailing social attitude is that being HIV positive is a treatable condition (and no longer a certain death sentence as it was back in the 1980s), the costs of an ongoing regimen of anti-retrovirals is still sufficiently high that it can be an obstacle to approval of a visa application for which no health waiver is available.

And the further lesson is that persons who are HIV positive may need to look to visa categories to which PIC 4007 applies, and for which a health waiver is available.

For more information on HIV: http://www.themanlyzone.com/hiv/

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