Position Statement. Policy rationale; policy realities

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1 Position Statement OCTOBER 2013: FOR GENERAL DISTRIBUTION HIV and Australia s Migration Health Requirement for permanent residence: call for policy reform Policy rationale; policy realities The policy rationale for applying the Health Requirement in respect of people with disability and chronic health conditions is stated to be economic - geared to ensuring that Australia s migration program does not place undue pressure on public health costs given that migrants to Australia have immediate access to subsidised health-care and medicines, under Medicare and the PBS. The gist of the rationale is that unlike many other developed countries, Australia has generous Medicare and Pharmaceutical Benefits entitlements, with no waiting periods for residents with permanent visas, and that unregulated entry of permanent residents with disability or chronic illness would place strain on the health system. Proposed reforms to the migration Health Requirement whereby applicants potential economic contribution can offset the future cost of health care are welcome. However, for people with HIV this policy referred to as the Net Benefit approach would represent a limited reform, given the challenges associated with providing evidence of the economic contribution an individual applicant would bring to Australia. Similarly, although recent changes to Health Requirement waiver policies for some classes of permanent visa are also welcome, limitations apply. For all but off-shore humanitarian applicants (who are currently granted waiver automatically, under a trial program see below), waiver requires provision of supporting evidence, including medical evidence and evidence regarding the potential fiscal benefit the applicant may bring to Australia. People without means are necessarily disadvantaged over people with the capacity and the finances to organise evidence and/or legal advice. AFAO believes that the Health Requirement is and will remain a barrier to people with HIV applying for and acquiring Australian residence. The economic policy rationale is not generally understood and the perception of prospective migrants and of the Australian community and international advocates, including UNAIDS is that Australia screens prospective permanent residents for HIV due to a desire keep them out. This understanding distorts perceptions of Australia s generally lauded response to HIV, stigmatises people with HIV and affected communities, and undermines affected migrant communities engagement in the development of targeted HIV prevention, care and support strategies. 1 A F A O P o s i t i o n S t a t e m e n t

2 Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities, yet Australia s migration legislation remains exempt from the application of the Disability Discrimination Act This legal framework, perversely, facilitates discrimination against people with HIV. We note Point 79 of the 2011 United Nations Political Declaration on HIV and AIDS: Intensifying Our Efforts to Eliminate HIV and AIDS, which calls on Member States to consider identifying and reviewing any remaining HIV-related restrictions on entry, stay and residence in order to eliminate them. Reform of Australian migration policy is required to bring Australia into line with international human rights standards and public health best practice. The health requirement and permanent visa applications: background Under Australia s migration legislation, the Migration Act 1958 (and Migration Regulations 1994), applicants for Australian permanent residence visas must satisfy the health requirement. Under this requirement, permanent visa applicants are required to undertake a medical examination. A person fails the health requirement if: - they have a health condition which means they may pose a threat to public health ; or - they have a medical condition/disability due to which they are likely to require health care/community services at a significant cost to the Australian community; or - providing those services to the person would be likely to prejudice the Australian community s (citizens and permanent residents ) access to those services. Failing the health requirement means that a person s visa application will be rejected. An applicant who refuses to comply with a request to provide medical or other evidence, or undergo a medical test, will be refused a visa. Currently, the only mandatory tests for the health requirement medical examination are for TB and HIV (testing for hepatitis can be required but only for certain cohorts of people, e.g., for pregnant women). Threat to public health For permanent visa applicants HIV is not considered to be condition which poses a threat to public health. TB is considered to be a threat to public health. A person with active TB will be found to be a threat to public health and thus refused a visa. 2 A F A O P o s i t i o n S t a t e m e n t

3 Significant cost assessment The assessment of the likely costs that may be incurred in respect of a person s disability/health condition involves consideration of: - the nature of the person s health condition(s)/disability; - the likely cost of providing treatment/community services to a hypothetical person with the same condition of the same severity as the applicant; and - whether those costs would be significant. Currently, net costs in excess of $40,000 are considered significant. Prejudice access assessment The prejudice access assessment is not an issue for people whose only significant condition or disability is HIV; it is generally accepted that providing health and community care to an HIV-positive person would not compromise community access to those services. Waiver of the health requirement Waiver of the health requirement is currently available for permanent visa sub-classes in the following categories: - Partner; - Child; - Adoption; - Humanitarian; and - Specified employer sponsored subclasses. For these categories the health requirement may be waived if the Department of Immigration and Border Protection (DIBP) is satisfied that the cost to the community or prejudice to access of Australian citizens and permanent residents to healthcare and community services in short supply is unlikely to be undue. If a health waiver is available for the type of visa a person has applied for, DIBP will notify the person that waiver is being considered and that they may provide information in support of a health waiver. Evidence of any compassionate circumstances will be considered, as will evidence of the extent to which the applicant and their family are able to mitigate potential costs or prejudice to access identified by DIBP. Mitigating factors may include the family s potential contribution to Australia (in particular, the skills, trades or qualifications they will bring). 3 A F A O P o s i t i o n S t a t e m e n t

4 On-shore asylum seekers Onshore Permanent Protection Visa applicants are not subject to the Health Requirement, so Health Requirement waiver is not relevant for this group. Off-shore refugee applicants Special criteria currently in place under a trial that will run until July 2014 mean that the health requirement is currently waived for off-shore refugee applicants, including for HIV-positive refugees. Given this trial, this policy position statement does not specifically cover health requirement policies affecting off-shore refugee applicants for permanent residence under Australia s Refugee and Humanitarian Program. The health requirement and HIV the impacts Mandatory HIV testing As outlined above, screening for HIV is a mandatory component of the health requirement consideration process for people over 15 years of age applying for a permanent visa. Applicants who refuse a request to undertake an HIV test are refused a visa. HIV-specific policies Although HIV-positive status does not in itself preclude the granting of a permanent visa, the estimated future cost of providing subsidised HIV anti-retrovirals (ART) to a hypothetical person with HIV under Australia s Pharmaceutical Benefits Scheme (PBS) inevitably exceeds the current $40,000 threshold (assessed over the person s lifetime) that is considered to be significant. Recent changes to Health Requirement waiver policies for some classes of permanent visa are of limited benefit for people without access to expert legal advice, as waiver consideration can require provision of extensive supporting evidence - including medical evidence and evidence regarding the potential fiscal benefit the applicant may bring to Australia. This can be a barrier to HIV-positive people even trying for waiver, and people without means are necessarily disadvantaged over people with the capacity and the finances to organise evidence and/or legal representation. HIV-related stigma Apart from these structural barriers for HIV-positive people seeking permanent residence in Australia, there are significant psycho-social barriers. The underlying policy rationale for mandatory HIV testing of potential permanent residents is not generally understood, neither domestically nor internationally. No matter what the rhetoric regarding the economic rationale for the health requirement, the common understanding among prospective migrants and of the Australian 4 A F A O P o s i t i o n S t a t e m e n t

5 community, media commentators and international advocates is that Australia s mandatory testing for HIV and associated policies are geared to precluding most HIV-positive applicants from migrating to Australia. Recent reforms to waiver policies may mean that it is rare for an applicant to be refused a visa on the basis of HIV-positive status alone but this is not the perception. Australia s policies are perceived intentionally to pose barriers for people with HIV. The perception that HIV-positive migrants, refugees and their families are not welcome in Australia can feed perception that migrants from countries with high HIV prevalence are vectors for disease. This stigmatises people with HIV within migrant communities - with HIV-positive people labelled by some as bringing shame on their community - and also in the wider Australian community. This stigma undermines affected migrant communities engagement in the development of HIV prevention, care and support strategies targeting communities of people from high HIV-prevalence countries. International perspective Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities, yet Australia s migration legislation remains exempt from the application of the Disability Discrimination Act This legal framework, perversely, facilitates discrimination against people with HIV and feeds HIV-related stigma, thereby tainting Australia s much lauded domestic HIV response and Australia s international reputation for providing an enabling legal environment for communities affected by HIV. Negative perceptions of Australia s migration policies as they apply to people with HIV extend to UNAIDS. The nuances of the economic rationale for Australia migration health requirement are lost to this international dialogue. Australian migration policy is simply considered to discriminate against people with HIV and to be thus in need of reform. Sixth National HIV Strategy Underpinning Australia s Sixth National HIV Strategy is recognition of the need for Australia to sustain an enabling environment that addresses the underlying causes of vulnerability to HIV and the social, legal and policy barriers to effective prevention, health promotion and service delivery. To identify key issues and reform priorities, the Ministerial Advisory Committee on Blood Borne Viruses and STIs (MACBBVS) established the Legal and Discrimination Working Party, which produced a set of papers that include recommendations for the reform of laws that impede HIV prevention and the care and support of people with HIV. Paper 3: Addressing Discrimination in Immigration Law and Policy recommends that: 1. The exemption of the Migration Act 1958 from the Disability Discrimination Act 1992 should be repealed. 5 A F A O P o s i t i o n S t a t e m e n t

6 2. The health requirement in the Migration Act and Regulations should be amended to ensure that people with disabilities are not subjected to unjustifiable discrimination in migration decisions. 3. Mandatory testing for HIV should be replaced with voluntary testing of applicants, with appropriate counselling and support provided to all applicants who undertake HIV testing for migration purposes. 2. AFAO s position The rationale for the Health Requirement applying to people with HIV may be economic and relate to the significant cost of providing Medicare and PBS benefits to individual applicants but this does not negate the fact that the policy effectively discriminates against people with HIV. The availability of waiver of the Health Requirement does not negate this discrimination. The economic policy rationale for compulsory screening of permanent visa applicants for HIV is not generally understood and where it is understood is perceived as being intrinsically discriminatory. Whatever the economic merits of the health requirement, its application to people with HIV fuels HIV-related stigma. This stigma undermines affected migrant communities engagement in the development of HIV prevention strategies targeting people among migrant communities, and participation in care and support programs for people with HIV. Disability, including HIV-positive status, should not in itself be a consideration under Australia s migration health requirement. The Disability Discrimination Act should be amended so as to remove the Migration Act general exemption. There should be no compulsory HIV-testing of people applying for permanent Australian residence. Mandatory testing for HIV should be replaced with voluntary testing of applicants and of permanent visa holders upon arrival in Australia, with appropriate counselling and support provided to all applicants who undertake HIV testing for migration purposes. DIBP and the Department of Health (Commonwealth) should together conduct community consultations to identify how best to promote HIV prevention, voluntary HIV testing and the care and support of people among migrant communities, and how best to address HIVrelated stigma among people from high prevalence countries. These consultations should inform the development of cross-portfolio and cross-jurisdictional settlement programs targeting people from countries with high prevalence of HIV. 6 A F A O P o s i t i o n S t a t e m e n t

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