# HIV + partner



## RogerA (Dec 30, 2011)

Hi, just want to ask my partner is HIV+ and I'm sponsoring him for de facto, just wondering what is our chances. 
Also if subclass 820 are eligible for waiver and appeal if our application is rejected because of his condition.

I'm really stress out and lost hope.
Please help.


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## IMkddj (Nov 14, 2011)

RogerA said:


> Hi, just want to ask my partner is HIV+ and I'm sponsoring him for de facto, just wondering what is our chances.
> Also if subclass 820 are eligible for waiver and appeal if our application is rejected because of his condition.
> 
> I'm really stress out and lost hope.
> Please help.


Hello RogerA,
Your case may lead to refusal. But its not necessarily. His result may be disclosed to the relevant Commonwealth and state or territory health agencies in Australia. I saw this info to Australian immigration booklet.


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## whatnext (Aug 3, 2011)

Hi RogerA

Generally a visa is denied on medical grounds if the deem an illness or disease to be a burden on the Australian health system. If treatment, surgeries and other medical costs are deemed to be a burden on the health system they may deny the visa. Having said that every case is different and it's not a cut and dry decision. 

Maybe call immigration and ask them who you need to speak to to try and get a better guideline as to what treatment and medical costs are deemed to be a burden. 

If you don't have much luck with that try searching for a migration agent or lawyer who may specialize in medical cases. This is probably going to take a fair bit of research on your part but I'm sure you'll find a better guideline.


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## mizunofujin (Nov 15, 2011)

It will not be rejected outright if every other condition (eg. evidence of living together for 12 months) is satisfied.

Prior to the decision for temporary residency, they will send you a letter to get evidence from you for consideration for the health waiver.


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## mizunofujin (Nov 15, 2011)

I can't post the links to the AFAO site. And there is a word limit. So I'll copy and paste it into 2 portions below. ACON (NSW) were extremely helpful too. The guide is for 2004, and as far as I can tell, the only thing that is outdated is that same-sex couples are now classed De Facto rather than interdependant.

The information in this Factsheet is correct as at July 2004. However immigration regulations and procedures change from time to time; therefore some of the information in this guide may have changed since it was written. You should check before you act on this information. AFAO cannot assume responsibility for errors in this guide or their consequences.
Immigration and HIV/AIDS
The Australian immigration system has very strict health requirements for all people applying for permanent residence, designed to minimise costs to Australia’s health care and welfare system. People are regularly excluded from migrating to Australia on a wide variety of health grounds.
Therefore all applicants are tested for HIV, and HIV status will be taken into account in deciding on your application for permanent residence. However there is no automatic exclusion on people with HIV/AIDS. A considerable number of people with HIV/AIDS have succeeded in obtaining permanent residence in Australia. It will depend on your individual circumstances. This article explains how the system works.
Classes
To become a permanent resident in Australia, you must fall into one of the classes set out in the Migration Regulations eg. spouse, de facto spouse, interdependency, refugee etc. All classes have strict requirements that must be satisfied in every case, including health requirements.
Interdependency
Over 80 percent of people living with HIV/AIDS in Australia are infected through homosexual sex. Therefore it is to be expected that a significant proportion of HIV positive applicants for permanent residence will be gay men in relationships with Australian citizens. (However there are also considerable numbers of HIV positive applicants who are not gay).
Gay relationships are recognised by Australian immigration law under the
“interdependency” class, but only if one partner is an Australian citizen, permanent
resident or eligible New Zealand citizen. This article does not deal with the
requirements of interdependency. Any person proposing to apply on these grounds –
whether HIV positive or not – is advised to obtain further information from the Gay
and Lesbian Immigration Task Force (GLTF)(see contacts listed below).
HIV Testing
All applicants for permanent residence aged 15 years or over are required to have an
HIV test. In addition, children under 15 are tested where they are to be adopted by
an Australian resident, where they have a history of blood transfusions, or where it is
clinically indicated.
The HIV test takes place as part of the process of medical examination undertaken
by all applicants for permanent residence. People applying within Australia must see
a Medical Officer for the Commonwealth. You will be advised of arrangements for
HIV testing when you make the appointment for your medical examination.
Health Requirements
As a matter of practice, a positive test result will mean that you do not meet the
strict health requirements. The health requirements apply to all classes of permanent
residence, except for refugee applicants applying within Australia. Where other
family members are included in your application (e.g. spouse and/or children) all
members of the family unit must meet the health requirements.
Waiver
The health requirements may be waived in certain circumstances set out in the
regulations. The Waiver is available for a very limited number of classes. For example
the waiver is available for those applying under the following classes:
• spouse (including de facto spouse) of an Australian citizen or permanent
resident;
• fiancé(e) of an Australian citizen or permanent resident;
• interdependency (which includes a gay or lesbian partner of an Australian
citizen or permanent resident);
• dependent child of an Australian citizen or permanent resident;
• former citizen of Australia;
• “refugee” type applications.
The waiver is not available for other classes of applicants, including:
• Parents of Australian citizens/permanent residents;
• Preferential family and concessional family;
• Business skills.
Check with the Department of Immigration and Multicultural and Indigenous Affairs
(DIMIA) to confirm whether the waiver is available for your class of application. If
the waiver is not available for your class of application, it is legally impossible for
your application to be approved.
2
If your application is in one of the classes that have access to the waiver, and you do
not meet the health requirements, the DIMIA must then consider the question of
whether to waive the health requirements. This is an integral and necessary part of
the Department’s decision-making process.
How the Waiver works
The health requirement can only be waived if you meet all the other criteria for grant
of the visa or entry permit applied for.
Before waiving the health requirements, the DIMIA must be satisfied that the
granting of the visa would be unlikely to result in:
• Undue prejudice to the access to health care or community services of any
Australian citizen or permanent resident;
• Undue cost to the Australian community.
The Department must also be assured that the granting of the visa would not
represent a public health or safety risk. The Department of Health and Ageing has
ascertained that access to HIV services is not of concern at present, so this part of
the health waiver procedure does not present a problem.
Undue cost
The main issue for people with HIV/AIDS is whether there will be ‘undue cost’ to the
Australian community. In each case, the DIMIA will obtain an estimate of the overall
lifetime cost to Australian public funds of treatment, care, social security, housing
etc. DIMIA is required to obtain the cost estimate from a Medical Officer for the
Commonwealth within the Department of Health and Ageing. In the past this figure
has been in the region of $250,000. It is not open to DIMIA to dispute or review the
cost estimate provided by the Medical Officer for the Commonwealth. The Migration
Regulations require DIMIA to accept the opinion as to costs as correct.


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## mizunofujin (Nov 15, 2011)

It is then up to DIMIA to decide whether the cost is undue. In making this decision,
DIMIA officers have been instructed that they should consider such matters as:
• The merits of the case including any compelling circumstances and the
strength of any humanitarian or compassionate factors. In the case of spouse
and interdependency visas, compassionate circumstances should be
additional to the fact that there is a genuine relationship between the
applicant and sponsor.
• The extent of social welfare, medical, hospital or other institutional or day
care likely to be required in Australia. Assessment of this criterion should not
be rendered inaccurate by false analogy with an applicant’s present
circumstances. For instance, the fact that an applicant does not currently rely
on such services may be due to non-availability, or to cost, or to the
applicant’s state of health now as distinct from what it will be likely to be in
the future.
• The educational and occupational needs of, and prospects for, the applicant
in Australia over the whole period of intended stay.
• The potential for deterioration in the applicant’s state of health, taking into
account not only the known medical factors but influences such as the strains
of adjustment to a new environment, lifestyle, occupation and so on, as
relevant to the visa class and the individual.
3
• The overall lifetime charge to Australian public funds.
• The willingness and ability of a sponsor, family member or other person or body to provide care and support at no public cost. In this regard, it needs to be recognised that commitments such as private health insurance or financial undertakings do not thereby exclude the possibility of public cost.
• Factors preventing the sponsor from joining the applicant in the applicant’s own country.
• Whether there are Australian children of the relationship who would be adversely affected by a decision not to waive.
• The location and circumstances of family members of the applicant and sponsor.
• The immigration history of the applicant and sponsor, including compliance to date with any requirements and undertakings.
What evidence should you include?
It is important that you include as much evidence as possible to enable the Department of Immigration to make an informed decision on the exercise of the waiver. The Department of Immigration will not necessarily ask you for this information; you need to include this material in your application.
It is suggested that the following questions should be addressed:
• What is your current health situation? (A detailed report from your own treating doctor would be useful).
• How long have you been HIV positive?
• Are you currently receiving any treatment?
• What is your prognosis?
• Were you infected in Australia?
• What evidence do you have of this?
• What is the situation for people with HIV in your home country?
• Is there persecution of or discrimination against people with HIV in your home country?
• If so, is there independent documentation available?
• Have you personally experienced discrimination? (Specify)
• Is treatment readily available in your home country?
• What support mechanisms do you have in your home country?
• Does your family know that you are HIV positive?
• If you are gay, what is the situation for gays in your home country?
• Are you working, or have you been offered employment in Australia?
• How much do you earn?
• If you are in Australia, do you pay tax?
• For how long do you anticipate working?
• Do you have private health insurance?
• Can your partner/family/sponsor provide care for you if you become ill?
• Are you / your partner/family/sponsor in a position to meet the cost of treatment, hospitalisation and care?
• Will you become dependent on Australian Social Security?
• Do you have a child/children?
• Is your child HIV positive?
• Is your child an Australian citizen?
• What will be the impact on your child if you are not granted permanent residence?
4
• Is your child dependent on you for financial support?
• Are you (or your partner) pregnant?
If you are applying on the basis of marriage, de facto relationship, interdependency, also address:
• What will be the impact on you, your spouse or partner, or your family, if you are not allowed to live in Australia?
• Would it be possible for your partner to live with you in your country, or some other country?
• If not, why not?
• Would this necessarily mean a forcible separation of you and your partner?
• What would be the impact on your partner if they were required to live in your country? Can they speak the language?
• Could your partner work in your home country?
• Does your partner have other family obligations in Australia?
• What standard of health care, accommodation etc. would be available to your partner in your country?
• Is your partner also HIV positive?
• If your partner is not HIV positive, what steps have you taken to ensure that he/she does not become positive (e.g. safe sex)?
• If your partner is HIV positive, what treatments etc. will be available to him/her in your home country?
• How did your partner react to the disclosure that you were HIV positive?
You should give as much detail as possible about all these questions which are relevant to you, and any other matter which you think should be taken into account in your favour. You should make a statutory declaration about these matters, and statutory declarations should be obtained from your partner and other relevant family members.
Appeals
If your application is rejected, you may have a right to apply for a review of the decision by the Migration Internal Review Office, or the Migration Review Tribunal. In certain circumstances it may also be possible to seek a review by the Federal Court of Australia. You should get advice from a migration agent or lawyer. Legal aid may be available to assist with your appeal, depending on the circumstances.
Getting help
It is probably important that you get assistance in preparing your application and compiling the necessary evidence to maximise the chance of success. The following organisations may be able to assist or to put you in touch with a migration agent or lawyer with experience in this field.


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## RogerA (Dec 30, 2011)

*Thanks*

Thank you guys for all your advise, I will contact those agency! 
Please wish me luck!

RA


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## scattley (Jan 26, 2010)

What I was told when discussing this topic with immigration doctors was that if the prospective applicant was in a highly paid profession or was wealthy - then there was no issue as it was obvious that they would be able to afford the treatments etc themselves. It was only when the applicants profession was a standard under 100K a year profession that the HIV status was used as an exclusion. The non-exclusion is the exception to the rule - not the other way around. This also was true for people with history of other diseases or disabilities - if they had money or were in highly paid professions - no problems. Otherwise - you are excluded.


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## RogerA (Dec 30, 2011)

To Scattley, thanks for your input, 

My question is, can that 100K is a combination of my income and his? Because we both earning around 50K with a possibility to do more if our application succeed.

Thanks again guys


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## Boboa (Mar 24, 2009)

I think as long as you both have a stable employment history it should be fine. Mention that in your letter/application. 
The main idea is "burden on public funds" try your best to prove otherwise. Chat with ACON. They have free advice for GLBT community which includes questions like that.


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## scattley (Jan 26, 2010)

RogerA said:


> To Scattley, thanks for your input,
> 
> My question is, can that 100K is a combination of my income and his? Because we both earning around 50K with a possibility to do more if our application succeed.
> 
> Thanks again guys


i was told the applicant had to have that salary - the theory being that only applicants with a high salary expectation (that is their level of experience and profession has an expected salary from their first job in Australia of this amount) can bypass a negative medical result. Not a combined income - where 50K is average. The norm is for people with HIV+ not to gain a visa - the exception being if they have a higher than average earning capacity or a large financial backing (like they have a couple of hundred K they are bringing with them). The statement included in one of the previous posts is to give immigration the "hole" to allow (for instance) millionaires HIV+ or professors to get in (without this statement they would not be able to migrate).


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