Health and Other Harms in Migration Law and Border Policy: Health+Law Reports on Australia’s Medical Border at the 2024 Law and Society Association Conference in Denver

Migrating to Australia can be a complex and intrusive experience. Reflecting on the administrative and legal process of migrating to Australia, Sergio*, a man in his thirties originally from South America and living with HIV, said:

I didn’t have to face any court, but I [did] have to prove that I wasn’t a bad person just because I have HIV […] I [had] to prove myself to someone else, who probably is not living with HIV, that I was not a bad person and I was a good citizen and I deserve to be here.

This reflection, shared with Health+Law researchers in an interview focused on living with HIV and legal issues, speaks to the operation of the Australian ‘medical border’.

The concept of the ‘medical border’ describes how public health governance and medical practices can be used as tools of national border control. As Sara Dehm, lecturer in international law and refugee law at the University of Technology Sydney, explains:

The concept of the ‘medical border’ helps us to attend to the specific ways that medical personnel, practices, knowledges and logics become enmeshed in the performance, function and ends of state border regimes.

In many examples, the modern medical border operates by recruiting public health policy, communicable disease surveillance, and other types of biomedicalised regulation and control into the service of policing national borders and helping to maintain the racial boundaries of the nation. For example, historians like Alison Bashford have used the concept of the medical border to explain how biomedicine and health policy were used throughout the nineteenth and twentieth century to limit immigration in countries like Australia, New Zealand, the United States and Canada. The operations of the medical border have ‘starkly intensified’ since the COVID-19 pandemic led states across the globe to implement strict border controls on the basis of public health.

In Australia, various laws and legal mechanisms control the movement of people across borders. Medicine and health play a core role in these mechanisms, and the screening and evaluation of a person’s health is often central to their success or otherwise in securing a visa for entry, stay and residence. Australian migration law, for example, imposes ‘health requirements’ that people seeking entrance to Australia must meet. One component of these health requirements is known as the ‘significant cost threshold’.

The significant cost threshold stipulates that visa applicants to Australia are free from a disease or condition that will result in health or community services generating a ‘significant cost’ to the Australian community. The threshold of a ‘significant’ cost has recently been set at $86,000 and is assessed over ten years for people living with a blood-borne virus like HIV or hepatitis B – which means that the estimated health and community services costs of an individual seeking residence must not exceed that amount within that period. Where costs are estimated to exceed this ‘significant cost threshold’, an applicant’s visa will most likely be refused. The significant cost threshold operates as a legally authorised form of discrimination and the Australian Human Rights Commission, alongside professional and community organisations and advocates have called for substantial reform.

While other intersections of HIV and the law have been explored in Australian research, the operations and effects of the medical border for people living with HIV have had limited attention. At the recent 2024 Law and Society Association (LSA) Annual Meeting in Denver, Colorado, Health+Law chief investigators David Carter and Anthea Vogl gave a paper on the medical border for people living with HIV in Australia. Their paper drew on the experiences of people like Sergio, quoted above. These experiences were shared as part of Health+Law’s national legal needs study (LeNS), which included interviews with people living with HIV and hepatitis B in all Australian states and territories.

In their paper, titled ‘Medical Borders, Immigration Law and the Regulation of Non-Citizens Living with a Communicable Disease in Australia’, David and Anthea argued that, for non-citizens living with HIV in Australia, the medical border often functions not only to exclude them from secure migration status, but can generate further legal and health issues, including obstacles or interruptions to HIV treatment and care. Among the people interviewed for the Legal Needs Study (LeNS ), it was frequently reported that the rules regarding HIV and other communicable diseases for migrants were opaque, that they often didn’t learn of these rules until well into the process of applying for a visa, and that the process often had significant impacts on their health and wellbeing, including interruptions to treatment and HIV care.

Beyond HIV specifically, the migration process impacted people’s access to secure employment, the stability of living arrangements, mental health, relationships with partners, family and community. Indeed, beyond the ever-present threat of being excluded from the opportunity to remain in the country, our participants described a broad range of health and other harms associated with the operations of the medical border in Australia.

David and Anthea’s paper on the medical border is currently being developed for publication. For further updates on this and other Health+Law research, sign up to our newsletter.

*Sergio is a pseudonym

Further reading and resources: 

The Global Commission on HIV and the Law Report 2012 available here.

Submissions to the Review of Australia’s visa Significant Cost Threshold (SCT) available here. 

The HIV/AIDs Legal Centre (HALC), The National Association of People with HIV Australia (NAPWHA), Health Equity Matters (formerly AFAO) and ASHM (formerly the Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine) submission to the Review of Australia's visa Significant Cost Threshold (SCT) available here.

David Carter, Health+Law Chief Investigator, delivered a presentation on the project’s pilot research into the harms inflicted on people living with HIV by Australia’s migration system. You can listen to the presentation here.

Australian Human Rights Commission submission to the Review of Australia’s visa Significant Cost Threshold (SCT) available here.

National review of health-related migration restrictions considers reform article available here.