Australia discriminates against HIV migration applicants

[Guest guest]

Federal Court ruling shows Australia discriminates against HIV

migration applicants

29, September 2005. Rights Australia said today that a Full Court of

the Federal Court decision handed down this morning means that any

student or other applicant for a short stay visa who is infected

with HIV will not be allowed into Australia without any

consideration being given to their actual circumstances, even if

they do not access Commonwealth benefits and have private health

insurance.

The decision - K** v Minister for Immigration - concerned a man from

Zambia, who wants to study for his Ph D here. He applied for a

student visa for four years so that he could remain in Australia to

complete his studies. He and his wife are infected with HIV.

Fortunately, their only child is uninfected. However, his doctor

reported that Mr K** was healthy and that the costs of his HIV

treatment would mainly be met by himself.

According to Mr K**'s doctor, " In summary, Mr K** is a healthy man

on combination treatment for which he pays and will continue to pay

while he is the holder of a temporary residence visa. The costs of

Mr K**'s health care that would be borne by the Australian health

care system for the period of the visa he seeks, that being a period

of only four years from 30 August 2002 until 30 August 2006, will

solely relate to the costs of monitoring his antiretroviral therapy,

which is a total insignificant cost of $4,279.20. (Emphasis in

original) " .

The Full Court of the Federal Court has overturned Justice

Finkelstein's ruling and indicated that under Australian Government

regulations the immigration authorities are not obliged to consider

the actual circumstances of the applicant's illness, but only the

impact of a hypothetical case.

The Full Court said, All the [immigration] Medical Officer need do

is provide an opinion about the likelihood of a hypothetical person

with " the disease or condition " requiring health care or community

services during the time of the prosecutor's stay in Australia, and

about whether the likely cost to the community of those services

would be " significant " .

Rights Australia spokesman Greg Barns said, " The decision confirms a

situation which is cruel and inhumane. In Canada, for example, each

HIV migration case is considered on its merits. This is impossible

in Australia because the regulations are such that the particular

circumstances of an applicant are irrelevant - only the hypothetical

case is considered. "

" Today's Federal Court decision effectively means that it is

impossible for short stay visa and student visa applicants with HIV

to enter Australia. This is discriminatory. "

" Rights Australia urges Minister Vanstone to take note of the

injustice caused to Mr K** and alter the regulations so that the

migration authorities have to consider the circumstances of each

case. As we know HIV can manifest itself to varying degrees and a

blanket ban on people with HIV entering Australia is inhumane, " Mr

Barns concluded.

For further information: call Greg Barns on 0419 691 846

A full text of the case is available at

http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/209.html

**While the case is on the public record, the name has been

abbreviated to K** at the request of Mr K**'s solicitor.

http://www.rightsaustralia.org.au/media780.html

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Cross posted from [AIDS_ASIA]AIDS Analysis Asia Pacific e News letter. An e

FORUM for peer to peer cross cultural discourse on HIV/AIDS issues and concerns

of people from Asia- Pacific region. Web page:

AIDS_ASIA/