This AFAO factsheet, March 2011, provides general information about how an HIV positive diagnosis may affect your own or a family member’s application for permanent residence in Australia. The policies are quite complicated and the process of applying for a permanent visa for someone with HIV can be daunting. The best approach is to get professional advice, either from a migration agent or lawyer. Contact details for getting advice and help are listed at the end of this factsheet.
The information in this factsheet is correct as at March 2011. Immigration legislation, regulations and procedures change from time to time. You should check before you act on this information, and it would be advisable to contact a migration agent or legal centre if you need legal advice or assistance regarding your own or another person’s situation.
The information in this factsheet is designed to help you to understand how Australian migration law operates for people living with HIV. The information in the factsheet does not constitute legal advice and the Australian Federation of AIDS Organisations cannot assume responsibility for the consequences of any errors in this guide.
Can a person who is HIV positive migrate to Australia?
Yes they can, but only in certain circumstances. Generally, individuals with HIV applying for permanent visas do not pass the health requirement test, but may be granted a permanent visa following that, under the 'waiver' provisions. These policies are explained in this information sheet.
Australian migration law is contained in the Migration Act 1958 and the Migration Regulations 1994, which set out the various visas available for permanent residence and temporary stays in Australia. People wishing to live permanently in Australia who are not Australian citizens must obtain a permanent visa. Permanent visa classes include partner, skilled, permanent protection, etc.
The Australian immigration system has very strict rules for people applying for permanent residence, including rules regarding health and disability. These rules are referred to as the 'health requirement'. The health requirement applies to all people applying for permanent visas except to on-shore applicants for permanent protection visas i.e., individuals seeking asylum. The health requirement applies to the main visa applicant and also to family members included in the application. Generally, a person and all family members included in a permanent visa application must satisfy the health requirement. Where any member of the family fails the health requirement, the whole family will be refused permanent residence.
Despite the fact that HIV-positive status does not in itself mean that a person will automatically be denied a permanent visa, most people with HIV fail the health requirement. The main reason for this is that the cost of antiretroviral therapy (ART) over a person’s lifetime is generally considered to be significant.
If you or a member of your family is HIV positive and has failed the health requirement, the Department of Immigration and Citizenship may be able to change the decision. This is called 'waiver'. The health requirement can be waived on compassionate grounds in individual cases but only for some visa sub-classes. If a waiver is refused, you may have the right to appeal the decision.
A PDF of this factsheet is attached below for downloading.