Updated: Dec 11, 2019
As the Visa Applicant, if you are HIV positive you are unlikely to pass the health criteria. However you may still be eligible for an Australian Partner Visa if the Department waive the health criteria.
If you are applying for a partner visa in Australia you will be required to attend for a health assessment. This is a requirement whether you make an onshore (820/801) or an offshore (309/100 or 300) visa application.
In your respective country you may arrange a health assessment with an appointed service provider; find out more on the DHA website LINK.
Included in the health assessment you will be required to provide a blood sample which will be tested for HIV. The Medical Officer of The Commonwealth (MOC) will then issue a guideline in regard to your condition. Usually the applicant is deemed not to meet the health criteria requirements because of the ‘significant costs’ associated with the long-term treatment of HIV, specifically in pharmaceuticals (medication) and community services (doctors/specialists).
With advances in medication your HIV condition will be determined as non-detectable. Note, you will still be assessed against the heath condition 4007 - 'Public Interest Criteria'. Also be aware the MOC decision is based on a hypothetical person in your situation. Even if you pay for your own medication and healthcare costs the MOC decision does not take this into account.
What Can I Do?
You may be eligible to make an application for a waiver of the 4007 condition. You will be required to demonstrate that despite the significant costs required for your ongoing treatment, the cost is ‘undue’. Another way of explaining this is that despite the significant cost there is a moral obligation to waive the health criteria and grant the partner visa.
The circumstances that may justify a waiver of the health criteria include compelling and compassionate circumstances, whether the visa applicant can mitigate the cost and or prejudice to Australian citizen/permanent resident access to health care.
When preparing your Health Waiver application you should be prepared to put everything on the table; your ability to mitigate healthcare costs, your earnings and complete financial situation should form a part of your application.
Are you in a long term relationship? How would your partner cope if the waiver was not successful and you were forced offshore? Do you have a 'Plan B'?
What factors are considered for a HIV health waiver?
The circumstances that the Department of Home Affairs will take into consideration in terms of determining whether a health waiver should be granted, generally include:
The impact on any Australian citizen children and the extent of any family ties;
The effect on an applicant’s health if forced to relocate;
The benefits the affected applicant and/or their family members can bring to the Australian community and the economy more generally by allowing the waiver;
The applicant and/or any sponsor’s ability to offset the potential costs of treatment
Any other relevant factors.
For any visa applicant, careful consideration should to be applied towards whether the person can meet the legislative requirements to make a visa application, as well as to be granted the visa. Even if you are planning on requesting a waiver of the health criteria, you will nonetheless still be required to undertake all required medical examinations for the visa (including HIV testing). One of the first things to do is to establish the full extent of the condition in terms of matters such as the current CD4+ cell count, what treatment algorithm is being pursued etc.
There is however some good news! From 1 July 2019, departmental policy to determine the significant cost threshold was increased to $49,000. Ok, an increase is never good but more importantly is that the costs are only calculated up to a maximum of 10 years; not lifetime costs as was previously the case. These changes are significant; applicants who previously could not meet the health requirement are now in a better place to make a viable application for a health waiver.
A health waiver for a partner visa can be a complex matter, it is strongly advised that you seek professional advice from a Registered Migration Agent experienced in Health Waiver matters. Do this prior to when you submit your visa application. In this matter, forward planning is important for you to understand what action you need to take and when. Health waiver applications consider a range of factors based on the applicant's individual circumstances including their ability to mitigate the potential costs, prejudice to access identified, as well as any specific compelling and compassionate circumstances.
Call us for advice with your HIV Health waiver application; we can help!
Tel: 0455 295 988