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