Australia's visa rules for people with HIV don't 'meet community expectations', says minister

Key Points

Advocates say some migrants are putting off HIV testing for fear it could jeopardise their visa applications.
Data shows migrants are more likely to receive a late HIV diagnosis.
Immigration Minister says Australia’s migration health requirements don’t meet community expectations.

Advocates hope remarks from Immigration Minister Andrew Giles on the sub-optimal functioning of Australia’s migration health settings signals a change in approach.

Giles said he is aware of concerns held by those in the HIV/sexual health promotion sector that temporary visa holders are scared to test for HIV for fear it could negatively impact their permanent residency application.

“Australia’s approach to migration health requirements does not meet community expectations,” he told SBS News.

“I see this almost every week in the personal decisions I make to intervene in the visa system via Ministerial Intervention.”

Giles said since taking on the immigration portfolio in June last year, he has been in conversation with industry experts and those with lived experience of HIV about removing stigma and increasing testing in migrant communities.

“Since coming to Government, I have been engaging on this issue with industry experts and listening to those with lived experience, including at a recent meeting of the HIV Taskforce led by [Health] Minister Mark Butler,” he said.

Migrants and HIV stigma

His remarks have been welcomed by a family who encountered firsthand the barriers faced by those with a positive HIV status seeking permanent residency.

“That acknowledgment from the Minister is welcome,” Ellie Osei, who became a permanent resident in March this year, said.

“I think it’s going to lift a lot of stress for a lot of other people that are yet to go through what we went through. It was definitely not an easy road. We felt we were not treated as if we were human beings. We were just treated as a number,” she said.

Ellie Osei, not her real name, has asked for anonymity due to concerns about stigma in her cultural community and the workplace.

Born in sub-Saharan Africa, she came to Australia in 2009 to work in an area of critical skills shortage – as a registered nurse in a hospital in regional Australia.

Applying for permanent residency in 2013, it took her 10 years to resolve her family’s case after going to the tribunal.

“I would hope things can be changed so that others don’t experience what I did going through the immigration system,” Osie said, referencing the mental toll of living with the uncertainty for her and the children.

“I think something needs to be done so that people who have got those health issues are treated as human. The infection itself has got an impact on you as a person in terms of the stigma related to it. So you have to deal with that and then have to deal with the length it takes for you to come to a conclusion [with your visa application].”

She said there were multiple shocks throughout the whole process.

In 2013, she was still coming to terms with the positive HIV diagnosis while applying for permanent residency. The diagnosis was revealed during a medical exam as part of the visa application process.

“I was shocked. I hadn’t expected to receive a positive diagnosis for HIV,” she said.

Osie’s journey to permanent residency

One of the two children in her care, her nephew, who had lost both his parents when he was seven, also received a positive diagnosis from the medical exam.

The diagnoses underpinned the decision to reject the application, which requires that those with a disability or health condition pass an assessment of the medical care costs to the Australian community.

The outcome of the failed application on medical grounds came through on Christmas Eve in 2016.

“I felt very discriminated against. It was quite devastating. As a registered nurse, I was paying a lot of tax at the time to the government – and I still am today. And I was working in a critical skills shortage sector in a remote area,” Osie said.

“I felt unwanted. The timing [of the notification] itself was also a blow. I felt devalued to be told of the outcome on 24 December, just before Christmas. Our Christmas was ruined.”

Ultimately, the Administrative Appeals Tribunal ruled in favour of the family in 2021 after considering factors including the ability of Osei and her eldest child to work and support themselves and their non-symptomatic presentation when on HIV treatment.

The decision was sent to the Department of Home Affairs to reconsider the application. It took more than a year before Osei learned about the successful permanent residency outcome.

An automated mailout of a Medicare card was how she found out about the visa outcome in the first instance.

“I thought it was a mistake. I was about to ring them to say: ‘I think you’ve sent this letter to the wrong person because I haven’t heard anything from immigration’,” she recalled.

In a letter seen by SBS News, a Department of Home Affairs staffer apologised for failing to directly notify the family of the successful visa decision.

“I apologise the grant notification were [sic] not issued when the decision was made on 2 March 2023,” the correspondence said.

“We are investigating as to why the letters were not auto sent to your migration agent.”

Visa barriers for people living with HIV

The lawyer handling Osei’s case, Alexandra Stratigos at the HIV/AIDS Legal Centre, said her case is not uncommon.

“There is no ability at law (under the Migration Act 1958 and Migration Regulations 1994) for someone to show that they can cover the costs associated with their treatment if they have a health condition that’s going to result in failure to meet the health criteria [that includes HIV],” she said.

An alternative to overcoming the health criteria condition is seeking a health waiver, which can be sought for a limited number of visa sub-categories. These include close family, humanitarian and business visas.

It's forty years since HIV was first discovered in the United States image

Stratigos said she is encouraged by the immigration minister’s remarks and hopes it signals forthcoming action to lift the barriers in place.

“I commend the Minister for those comments and the commitment to look at change,” she said.

“These laws have been roughly the same since the 1990s with minimal changes, and it has caused significant barriers to people living with HIV in entering the country and remaining here. It’s caused families to be separated. It’s lengthy, it’s costly, it’s stressful.”

She urged the federal government to remove the health criteria or, failing that, introduce more visa subclasses with health waiver options.

“A very quick solution could be an amendment to the significant cost threshold so that people living with HIV could still obtain the visa. If, for example, that significant cost threshold was raised to, say, $180,000, then all people living with HIV would be able to obtain permanent residency,” she said.

Advocates call for change of visa rules for migrants with HIV

Stratigos said Australia has been an outlier in its approach to health assessment processes for visa applicants with a disability or medical condition, including HIV.

“It is out of step with comparable countries, including New Zealand,” she said.

Australia’s immigration rules on health criteria have been in place since the 1990s, despite laws at a domestic and international level on anti-discrimination and the rights of people with disabilities (Disability Discrimination Act and the Convention on the Rights of Persons with Disabilities).

Caveats and exemptions allow the immigration policy to continue.

Stratigos said the caveat – known as the interpretive declaration – under the international treaty on the rights of people with disability was signed by Australia in 2007. She added it was discriminatory then and continues to be so in 2023.

“It’s disappointing that that has to continue to be there so that the Australian government can essentially continue to discriminate against people with disabilities,” she said.

Recent cases requiring intervention by the immigration minister to override the outcomes of the health criteria policy include those involving a child with autism and, separately, another child with , both in Western Australia.

Fear stopping people from getting tested

Darryl O’Donnell is the CEO of Health Equity Matters, the national federation for the HIV community response.

He said temporary visa holders have been scared to present to health services and get tested for HIV, fearing that a positive result could delay or jeopardise their visa application.

“Some students and some people who are working temporarily in Australia will fear testing for HIV because it might affect an application for permanent residency,” he said.

“There are issues in the system that we are still advocating for with the Australian government to make it absolutely clear for anyone who is in Australia that they can test for HIV – and that it won’t be an impediment to permanent residency applications.”

COVID pandemic sets back progress against TB, HIV, malaria in Asia-Pacific image

in Australia released by the Kirby Institute show that 44 per cent of the 555 cases recorded in 2022 were late diagnoses of four years or more. Compared to the Australian-born population, those born overseas tend to be more likely to receive a late diagnosis.

Dr Skye McGregor from the Kirby Institute said that is of high concern as it means that besides undetected transmission in the community, individuals are also delaying treatment.

She said any barriers preventing people from getting tested must be dismantled.

“I think fear around delaying visas and permanent residency is real around HIV. And I think that comes back to removing the stigma around HIV, but also Australia has further work to do on the visa process,” she said.

“We need to ensure timely testing and accessible testing. So this might mean things like self-testing. It might mean modifying services to make them culturally appropriate. It also might mean further funding of sexual health services where it is quite challenging to get an appointment at the moment.”

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