Living with HIV, Building a Life Together: Winning a Partner Visa Health Waiver

The challenge

Our client, a skilled professional, applied for a Partner visa to remain in Australia with his partner, an Australian citizen. They were a genuine and committed couple, engaged to marry and planning to build the rest of their lives together here.

The application ran into a barrier on health grounds. A Medical Officer of the Commonwealth (MOC) assessed our client as living with HIV. His infection was asymptomatic and well controlled, but the projected cost of his ongoing treatment, mainly antiretroviral medication, was assessed as exceeding the significant cost threshold. On that basis he was found not to meet the health requirement in Public Interest Criterion 4007 (PIC 4007), which placed both the temporary and permanent partner visas, and the couple’s future together, at risk.

The stakes of removal were high. Returning to his home country was not a neutral alternative. There, people living with HIV, and gay men in particular, face entrenched stigma and discrimination, including real barriers to safely accessing treatment. A forced return would have threatened not only the relationship, but our client’s health and wellbeing.

Our approach

The health requirement can be waived where the decision-maker is satisfied that granting the visa would be unlikely to result in “undue” cost to the Australian community. That is an evaluative and discretionary judgment, and the law allows compelling and compassionate circumstances to weigh heavily in it. We built a comprehensive waiver submission directed at every factor that mattered.

• Health and prognosis. We presented medical evidence of our client’s excellent health, including an undetectable viral load and strict treatment compliance. With modern treatment, a person in his position can live a full, healthy and working life largely unaffected by the condition, consistent with the approach taken in comparable cases.
• Capacity to mitigate cost. We demonstrated the couple’s substantial income, assets and savings, and showed that their combined tax contributions over the relevant assessment period far exceeded the projected health costs. The “cost” the assessment relied on was one our client was plainly able to offset.
• Skills in demand and employer impact. We showed that our client’s occupational skills were sought after in the Australian labour market and that his departure would significantly harm his employer, a specialist business that depended on him. We made the same case for his partner, whose own in-demand profession and employer would be affected against the backdrop of a national workforce shortage in that field.
• Community ties and the relationship. We set out the couple’s deep community ties and the genuine, committed nature of their relationship, supported by extensive evidence.
• Consequences of removal. We addressed directly the serious harm our client would face on return: the real risk that stigma and discrimination would compromise his health and his ability to access treatment safely, compounded by separation from the partner who was central to his support.

We grounded the whole submission in the legislation, Department policy, and the governing authority on when a cost is “undue,” and recommended that the waiver be exercised and the visa granted.

The outcome

The Department accepted the submission. The health requirement was waived, and the Partner visa was granted. Our client secured his future in Australia, with his partner, free of the threat of removal to a place where his health and safety would have been at risk.

Why it matters

A health requirement finding can defeat an otherwise compelling partner application, even where the applicant is healthy, self-sufficient, and contributing. For people living with well-managed conditions such as HIV, the waiver provision exists precisely to prevent unjust outcomes of that kind. Securing a waiver takes a rigorous, evidence-led case that brings together health, financial capacity, contribution to Australia, community ties, the genuineness of the relationship, and the real consequences of removal. This outcome kept a couple together, and it shows the difference a thorough and carefully argued waiver submission can make.

Details in this case study have been anonymised to protect our clients’ privacy.