HIV positive migrants who have been denied a visa to live in Australia may have a new avenue of appeal following a recent court ruling.

The Federal Court of Appeal ruled last month that medical assessments used by the Department of Immigration to determine an applicant’s suitability for a visa must be made within a reasonable timeframe, such as 12 months.

Previously, the Department had been using medical reports from HIV positive applicants that were often several years old and which did not reflect the applicant’s current health status.

The ruling was made following representations to the Federal Court of Appeal by the Sydney-based HIV/AIDS Legal Centre (HALC).

HALCs principal solicitor Iain Brady says the ruling provides more certainty for HIV positive migrants during their assessment process.

Visa assessments can sometimes take years to complete and require a whole range of supporting documentation, including a medical assessment, says Brady.

Prior to this ruling, HIV positive migrants could have their visa applications denied based on information that was years out of date, says Brady.

Essentially, what the court has now decided is that migrants are entitled to have the health criteria component of their visa applications assessed within a reasonable time or the Department of Immigration will need to obtain an updated medical assessment if the processing of their application does not take place within a reasonable timeframe.

What this means is that HIV positive migrants who have had their visa applications rejected will now be able to appeal against that decision if their application was denied based on an outdated medical assessment.

This is an important ruling that ensures HIV positive migrants will now get a much fairer go.

It will also have a far reaching effect on the immigration sector generally as it creates a precedent that migrants are entitled to have the health criteria component their visa applications assessed against information that is current and up to date.

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