HIV Positive Partner Visa Application: What you need to know

HIV Positive Partner Visa applicants may see a more complicated application, but this is by no means the end of the road.

Here are some of the most common questions we receive from those who are living with HIV.

1. Can I get a Partner Visa if I’m HIV Positive?

When it comes to the Partner Visa and the Prospective Marriage Visa, the short answer is YES. Partner and Prospective Marriage Visas are one of the few visa subclasses where applicants can access a ‘health waiver’ which must be exercised in order for the visa to be approved. It is going to be a lot trickier than it would be for those without a health condition, but it is possible. At Freedom Migration, our team specialises in representing couples where the applicant is HIV Positive, and we have the success stories to prove it’s possible!

2. What are the Health Requirements for a Partner Visa?

The health requirement for a partner visa is known as Public Interest Criteria (PIC) 4007. When you apply for a Partner Visa, you will be required to complete a visa medical. This includes an assessment with a doctor who will review your medical history, ask about any medications you take as well as performing a physical examination. You will need to have a chest X-ray and you will need to submit urine and blood samples for testing which includes a HIV test. The Medical Officer of The Commonwealth (MOC) will review your test results and provide advice regarding your health status.

The MOC is checking to ensure the visa applicant:

• Is free from Tuberculosis; and
• Is free from a disease or condition that is, or may result in the applicant being a threat to public health in Australia or a danger to the Australian community; and
• Is free from a disease or condition in relation to which a person who has it would be likely to require health care or community services; or meet the medical criteria for the provision of a community service; and
• the provisions of the health care or community services would be likely to:
  • Result in significant cost to the Australian community in the areas of health care or community services; or
  • Prejudice access of an Australian Citizen or permanent resident to health care or community services; regardless of whether the health care or community services will actually be used in connection with the applicant

3. How does living with HIV impact meeting the health Requirement?

With the progress in medical treatments, your HIV status could potentially be considered undetectable, however, in most cases if you are a visa applicant living with HIV you will not pass the health criteria due to the ‘significant costs’ linked to ongoing treatment. This is attributed predominantly to the costs of ART medication and and some community healthcare services such as access to doctors, blood testing, and specialists.

The good news is PIC 4007 provides for the possibility of a waiver (that is the health criteria above would not apply) if you don’t meet the above criteria.

4. What is Considered a Significant Cost?

The MOC will consider the results of your medicals and any supporting evidence or reports from specialists detailing your treatment and prognosis and provide an opinion on the estimated costs over the assessable period.

The significant cost threshold is currently set at $86,000. If you have a permanent or ongoing condition with a reasonably predictable course (such as living with HIV with undetected viral loads), the MOC will assess your health costs over your remaining life expectancy up to a maximum of 10 years.

5. Will the fact that I import my medication from overseas, 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. They don’t take into consideration any of your personal circumstances when making the assessment.

6. I won’t need Medicare for my medication. Am I still affected?

Yes. The health criteria applies regardless of whether you intend to use Medicare or not. Australia currently operates a Federation Funding Agreement (FFA) model to provide free or affordable access to ART for people in Australia, regardless of their visa status or eligibility to enrol in Medicare. The intention of the health requirements and PIC 4007 includes controlling public expenditure on healthcare and community services balanced against the desire to facilitate entry of migrants to Australia.

7. What is the Hypothetical Person Test?

A lot of families feel confused by the health criteria and it’s relevance to them especially where you intend to buy your own medication from abroad, or if you intend to rely on family for the necessary support for your condition.

When making an assessment against the health requirement the MOC uses a Hypothetical Person Test. It’s a way to estimate potential healthcare costs to Australia, based on your medical condition, as if a typical person with the same condition would be using the health services in Australia.

What MOCs Consider:

• They only look at the nature and severity of your health condition, your age, the type of visa, and the visa period.

What MOCs Do Not Consider:

• Your personal plans, like not using public health services or paying with your own money.
• Whether you’ll actually use the services you’ve been costed for, like bringing your medication.
• Promises that others will cover your costs, such as family or a foreign government

Once a Partner Visa is applied for (and also when a Partner Visa is granted), the Department of Home Affairs has no control over who will make use of Medicare and who won’t. The hypothetical person test assumes that you will use the healthcare services like anyone else might, because there’s no legal way to ensure you stick to any plans to not use them. Life changes, and so might your decisions about using healthcare services.

Even though the initial MOC assessment applies the hypothetical person test, read on to find out more about how your individual circumstances will impact your prospects of success in being granted a waiver.

8. What is a Health Waiver?

A health waiver in short is an opportunity for your visa to still be granted despite not meeting the health requirements. It’s a chance at setting out your personal situation to the decision-maker with a view of trying to persuade them to grant your visa by waiving the criteria that would normally apply to health. Now, how you persuade them comes down to the relevant legal considerations, it’s not simply a matter of begging and pleading.

This process will require you to show that, although your continued treatment incurs significant expenses, these costs constitute an ‘undue’ burden. In simpler terms, this means that despite the high costs, there is a moral imperative to overlook the health criteria and approve the partner visa. Situations that could warrant such a waiver include compelling and compassionate circumstances, or if the visa applicant can prove an ability to alleviate the cost and minimize the impact on healthcare access for Australian citizens or permanent residents.

9. What Does the Decision Maker Consider Important with a Health Waiver?

There are numerous factors the decision maker will take into consideration falling under two categories:

• Ability to offset or mitigate costs associated with your health condition
• Compassionate and compelling circumstances

When we prepare a health waiver submission at Freedom Migration, we start with a full assessment of your personal circumstances as a couple and identify your strongest arguments having regard for the legislation. While no two cases are ever the same, and there is no one piece of evidence to ‘guarantee the win’ there are a number of factors that we have found make a significant difference when it comes to the success or failure of a health waiver for our HIV Positive Partner Visa applicants.

Factors that may carry weight and help your case:

• Positive contribution to Australia through paying taxes, having worked for a number of years;
• Owning assets with equity value;
• Having savings;
• Being skilled in an occupation that is experiencing a skill shortage in Australia;
• Living and working in a regional area;
• Inability to live in your home country together for legal or safety reasons;
• Impact on your sponsor and/or any Australian citizen children in the event you were unable to remain in Australia

As stated, there is usually no one factor that will see a health waiver secured. Everyone’s situation is different and it is best to have a full assessment of your personal circumstances, leaving ‘no stone unturned’ before making a decision about your risk of not securing your Partner Visa.

10. Is a Health Waiver complicated?

The legal considerations for health waivers are broad and subjective. There is simply no one size fits all approach and each application is assessed on its individual merits. The gravity of not getting it right and having your Partner Visa refused is devastating. A health waiver is a complex issue, so we strongly recommend seeking professional advice from a Registered Migration Agent experienced in health waiver matters.

11. Do health waivers get approved?

Absolutely! However, it does take a lot of work. A case officer won’t just give you a visa because you and your partner seem nice together. They also won’t give you a health waiver just because you’d miss each other if you couldn’t stay in Australia. Getting a health waiver requires you to provide a lot of information and clear reasons. Our team has found working with couples who put a strategic plan in place early and start preparing improves their chances of being successful!

12. I was diagnosed with HIV in Australia. Does that impact my health waiver?

When and where you were diagnosed is not an key consideration in the assessment of a health waiver. The question the Department is asking is: Would the grant of the visa be unlikely to result in an ‘undue’ cost to the Australian community?

13. What are the Steps in a Partner Visa if I need a Health Waiver?

14. Do I need a Registered Migration Agent?

It’s highly advisable to have representation, as navigating this process is complex and far from straightforward.

15. 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.

In case of a refusal, you might have the option to request a review of the decision by the Administrative Appeals Tribunal (soon to become the Administrative Review Tribunal). Remember, there’s a strict deadline to apply for this review, so it’s crucial to seek advice from a Registered Migration Agent quickly.

While there may be a right of appeal, it’s important to understand the impact of a refusal on your relationship. If you have applied for an offshore Partner Visa or Prospective Marriage Visa, your new life in Australia together may be delayed by a number of years as the Tribunal processing times can exceed a number of years. Where you are inside Australia and have had an onshore Partner Visa refused, this may put your life on hold for a while. You may see yourself on a bridging visa for an extended period which can affect job prospects, your ability to buy a home together, and your overall sense of security and wellbeing.

16. Will I be able to become a citizen of Australia if HIV Positive?

The good new is once your permanent partner visa has been granted there is no health criteria for citizenship applications; a person’s HIV status will not have any impact on applying for Australian citizenship.

17. Where do I get help?

For more than a decade, Freedom Migration has specialised in supporting HIV Positive Partner Visa applicants. We’re deeply familiar with the unique challenges and concerns that arise when navigating the visa process with HIV. Often, the couples we assist have only shared their health status with each other and their healthcare provider, making the prospect of disclosing this to others daunting. At Freedom Migration, we offer a safe, secure, and non-judgmental space for you to discuss your situation.

IMPORTANT: Please note, this does not constitute Immigration advice. Always seek advice from a Registered Migration Agent before applying for an Australian Visa. Migration Law is constantly changing. This information is accurate only at the time of publication.