Applying for a Partner Visa when HIV+
Freedom Migration specialises in processing visas that enables couples to be or remain together in Australia (e.g. Partner visas). If the immigrating partner is HIV+, this can make the visa application process more complicated; but, by no means is it the end of the road.
Here are some of the common questions we get asked:
1. Can I migrate to Australia if I am HIV+?
It depends on what visa you are applying for because all visas to Australia have health criteria, and the health requirements differ from visa to visa. When it comes to the Partner visa, the short answer is YES. You will have to jump through a few more hoops; but, it is possible to migrate to Australia and we have had numerous success stories! Regardless of whether you are applying for the Partner visa or a different type of visa, we will look for visa options that you may meet the criteria for, or can argue to be exempt from meeting the visa criteria such as arguing for a Health Waiver.
2. What is a Health Waiver?
If you’ve applied for a visa that allows for a Health Waiver, the Department of Immigration and Border Protection is made aware of you not meeting the health criteria because of your HIV+ status, they will write to you, giving you the opportunity to present reasons why they should consider exempting you from satisfying the health criteria so you can be granted the visa. This is what we refer to as a request for a “Health Waiver”.
3. Is a Health Waiver complicated?
A health waiver is a complex issue, and so we strongly recommend seeking professional advice from a Registered Migration Agent experienced in health waiver matters .
4. Do health waivers get granted?
When assessing the health waiver, the Department of Immigration and Border Protection will look at your circumstances individually because everyone's situation is different. There is no one size fits all, which also makes it not a straightforward process.
5. Do I have to tell the Department about my HIV status?
Yes, absolutely! if you know of your HIV status and lie on an application form, you risk ending up in a much worse situation. Providing incorrect information with your visa application can result in your visa being refused or cancelled. It can also result in exclusion periods from Australia of up to 10 years.
6. I was diagnosed with HIV in Australia. Does that impact my health waiver?
Unfortunately, when and where you were diagnose is not important, because the question the Department is asking is simply whether you are HIV+ or not.
7. Why does HIV prevent me from possibly passing the health criteria for a visa?
Most commonly, visa applicants who are HIV+ will fail the heath criteria because the Medical Officer of the Commonwealth will likely form an opinion that the cost of treatment during the visa applicant’s lifetime will result in a significant cost to the Australian community. Treatment includes pharmaceuticals and community services.
8. Will the fact that I import my medication from overseas, or, I am not on medication reduce the chances of me failing the health criteria?
No. The Medical Officer of the Commonwealth will base their opinion on the treatment a hypothetical person in your situation (i.e. taking the medication you are taking or may need to take) will need during one’s lifetime.
9. What do I need to show the Department to get a health waiver?
Apart from proving that you meet the requirements for the visa, for a Partner visa, you will need to satisfy the Department that granting the visa would be unlikely to result in: undue cost to the Australian community; or undue prejudice to accessing health care or community services of an Australian citizen or permanent resident
10. Do I need a Registered Migration Agent?
Having some form of representation is strongly recommended because this is by no means a straightforward issue.
11. What if my health waiver gets rejected?
If the visa you have applied for allows for a Health Waiver (i.e. a Partner visa), and the Department is of the opinion the evidence you put forward did not warrant waiving the health criteria, your visa application will be refused. If your visa is refused you may be able to lodge a review of the decision to the Administrative Appeals Tribunal. It is important to note that you will have a limited timeframe in which to apply for the review so it’s important to get advice from a registered migration agent fast!
12. Is there any particular visa that has a higher chance of getting approved?
This is a tricky question to answer. The health criteria requirements vary from visa to visa so you may have a better chance at a waiver for one visa over another, and for other visas your HIV status will not matter for the visa to be granted. It is best to speak with a registered migration agent to understand whether the health criteria is needed for the visa you are interested in applying for and what you may need to argue for a health waiver.
If after reading the above questions you feel it’s time to get answers to your specific questions, call our office on 07 3063 1200 and get yourself booked for a Visa Planning session.