Partner Visa Australia - 4007 Health Waiver
For permanent visa applications in Australia if the applicant is HIV positive you are unlikely to pass the health criteria. However you may still be eligible for an Australian Partner Visa if your application for the 4007 HIV health waiver is successful.
There is a widely held misconception that a permanent visa cannot be approved to a person with HIV. These days quite the opposite is true in our experience partly due to the advance of scientific medicine, and changes in the regulatory framework overseeing the health requirement in Australia immigration law & policy. HIV/AIDS is no longer considered a fatal illness, there is an abundance of evidence to show that patients who commenced on HAART will have a normal life-span or in most cases exceed normal life expectancy.
Undergo A Health Assessment
When applying for a partner visa in Australia you will be required to attend a health assessment for the following visa subclasses:
Subclass: 820/801 (Onshore Partner Visa)
Subclass 309/100 (Offshore Partner Visa)
Subclass 300 (Offshore Prospective Marriage Visa)
In your respective country you may arrange a health assessment with an appointed service provider; find out more on the DHA website LINK.
Partner Visa - Health Assessment
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 guidance in regard to your condition. Usually the applicant is deemed not to meet the health criteria because of the ‘significant costs’ associated with the long-term treatment of HIV, specifically pharmaceuticals (medication) and community services (doctors/specialists).
With advances in medication your HIV condition may 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 have adequate funds to pay for your own medication and healthcare costs this alone may not be sufficient to meet the health waiver application.
Public Interest Criteria 4007
If you have failed to meet PIC 4007 a health waiver can be exercised by the Department of Home Affairs. The health waiver can be exercised when the following criteria are met:
The visa applicant(s) satisfied all other criteria for the grant, and
The Department is satisfied that granting of the visa would be unlikely to result in:
Undue cost to the Australian community or
Undue prejudice to access health care or community services of an Australian Citizen or Australian Permanent Resident
What Can I Do - 4007 HIV Health Waiver?
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 costs 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 try to put everything on the table. Your ability to mitigate healthcare costs, your earnings and complete financial situation could form a part of your waiver application.
Are you in a long term relationship?
How would your partner cope if the waiver was not successful and you were forced to reside offshore? Do you have a 'Plan B'?
What Factors Are Considered For The HIV Health Waiver?
The circumstances that the Department of Home Affairs may take into consideration in terms of determining a health waiver may include:
The impact on any Australian Citizen dependents (children) and the extent of any family ties,
The effect on an applicant’s health if forced to relocate,
The benefits the 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
Pros & cons if the sponsor and applicant were forced to relocate outside Australia.
the sponsor would be seriously adversely affected financially, such that they would be unable to subsist (maintain or support themselves at a minimal level) in the applicant’s home country due to a lack of language skills, family support and/or employment opportunities.
there is evidence of an adverse impact on Australian citizen minor children if a decision not to waive is made (for instance, the sponsor has provided evidence that he/she is prevented by the other parent from removing minor children from Australia).
the sponsor has significant family links to Australia and has demonstrated caring or financial obligations towards them.
the sponsor/applicant and/or other working family members in a non-Skilled visa application have occupational skills in high demand (refer to the Medium and Long-term Strategic Skills List (MLTSSL) of the Skilled Occupation List)
there is no permanent migration pathway to the applicant’s home country (or another country that the couple have the legal right to reside in) available to the sponsor (for example, because same-sex migration to that country is not available).
there are other compelling or compassionate circumstances including location and circumstances of the applicant and/or sponsor’s family members
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.
MOC Costings
There is however some good news, Departmental policy to determine the significant cost threshold was increased to $51,000. Ok, an increase is never good but more importantly is that the costs are 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 position to make a viable application for the PIC 4007 health waiver.
A health waiver for a partner visa can be a complex matter, for peace of mind try to seek professional advice from a Registered Migration Agent experienced in Health Waiver matters. Do this prior to when you submit your visa application, forward planning is essential 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 the ability to mitigate the potential costs, prejudice to access identified, as well as any specific compelling and compassionate circumstances in each individual case.
In our view a well researched health waiver submission is one of the most complex areas in migration law. For sure, obtain professional advice as early as possible in order to give your application the best chance of success.
We have represented many clients with HIV health issues and take pride how we approach this sensitive issue on behalf of our clients.
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