Acknowledgements endorsements Background methodology executive Summary 11 Recommendations 22 Article — general obligations 38

Mandatory HIV Testing

323. 
     A HIV test is a mandatory part of the final health check for all prospective migrants, and to all off-shore applicants for refugee and humanitarian visas. If the applicant is HIV positive, then the cost assessment will very likely determine that the applicant does not meet the health requirement.³¹⁹ People who are HIV positive represent the highest proportion of migration applicants who fail to meet the migration health requirement.³²⁰
     
324. 
     The mandatory HIV/AIDS testing of offshore refugees prior to resettlement is of particular concern. Unlike on-shore refugees where the health requirement does not apply, an off-shore refugee who is found to have HIV will be unlikely to meet the health requirement and will not be granted a protection visa despite having a well-founded fear of persecution.
     
325. 
     The policy to impose a mandatory HIV test to all permanent visa applicants and to generally refuse visas to people with HIV “adds a second layer of discrimination”.³²¹ HIV does not represent a public health threat and consequently there is no rationale for mandatory HIV testing.³²² The UN International Guidelines on HIV/AIDS and Human Rights state:
     

There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status…Therefore, any restrictions on these rights based on suspected or real HIV status alone, including HIV screening of international travellers, are discriminatory and cannot be justified by public health concerns.³²³

Case Study

Mr X had HIV and became too ill to support his family. He was recognised by UNHCR as a refugee, and his relatives who were all Australian citizens applied to sponsor him to Australia. Mr X had numerous close relatives in Australia, including his parents, siblings and children from a previous marriage. All were willing to provide financial and emotional support to care for him and his young family. Despite his circumstances and family sponsorship, his application was refused due to the health requirement.

UNHCR was required to seek a solution for Mr X in other resettlement countries and succeeded in obtaining urgent medical care and resettlement for him elsewhere. Mr X had to move to a country where he and his family had no other family support and few communal ties. His process of settlement and rebuilding of his life have been made correspondingly more difficult.³²⁴