HIV Health Waiver

HIV is not a disease considered to be a threat to public health, however all Australian visas are subject to health criteria. Some temporary and all permanent visa applicants must undergo health checks to determine whether they satisfy the health criteria. The health check may include an HIV test.

For temporary visa applicants the estimated cost due to a person’s HIV condition will most likely not be an issue. This is because one would be unlikely to pose a significant cost during a short visit

Applicants are assessed against the health criteria which, for most visas, are set out in Schedules 4005, and 4007.

If you fail the health criteria because of the estimated cost is higher than $49000 you will be given what is called a ‘natural justice letter’ notifying you of the intention to refuse the visa because of your health and giving you an opportunity to respond. To respond to a that letter for a temporary visa you should make arguments demonstrating why you will not pose a significant cost the Commonwealth.

When applying for permanent residency the estimated costs of treatment and other expenses for HIV positive applicant are likely to be well above the allowable limit. There are however some limited circumstances in which HIV positive person can obtain a permanent visa for Australia. These limited circumstances are where the 4007 health criteria apply to allow the applicant to request a waiver of the health criteria by demonstrating that the estimated cost, whilst significant, is not undue. This is done by showing that compelling and compassionate circumstances exist which warrant a waiver of the health criteria.

HIV positive applicants who apply for any permanent visa that is subject to the 4005 health criteria will have their visa refused as no waiver apply.

What Factors are Considered for a Health Waiver?

The natural justice letter may indicate a list of issues the applicant may wish to cover in the response.

The factors broadly are:

• The benefits the applicant and/or sponsor bring to the Australian community and the economy;
• The applicant and/or sponsor’s ability to offset the potential cost;
• The disadvantages the eventual visa refusal would cause to the applicant’s sponsor, the Australian community and the economy;
• Any relevant humanitarian considerations.

Any circumstances that bear on either the benefit of the grant of the visa, or on disadvantages to the sponsor and Australia in general should the visa not be granted will be relevant considerations to the health waiver. Such benefits or disadvantages must be explained in detail and evidenced as far as possible.