Australian Immigration Daily News

Do the health criteria of Australia’s Migration Regulations strike the right balance? 

Should Public Interest Criteria 4005 and 4007 really be written in terms that the assessment of whether an applicant “passes” the health criteria really be made on the basis that it would be likely that the provision of health care or community services would be likely to be significant regardless of whether the services would be used or not? 

Does that drafting really make any sense at all? If an applicant’s family has sufficient financial resources that health care for a child with a medical condition would not impose a significant burden on health care or community services, then how could it be “likely” that the provision of health care or community services would result in significant cost to the Australian community?

Is the current “threshold” of $40,000 that is fixed by policy for determining whether the cost of health care and community services would be “significant” realistic and fair, or is too low? 

Should the Medical Officer of the Commonwealth really be the sole and exclusive arbiter of whether potential health care and community services costs are significant?  

Is Regulation 2.25A(3) which requires the Minister (and hence the Tribunal in the context of a merits review application) to take the opinion of the Medical Officer to be correct really an appropriate regulation?  After all, in the context of other litigation, aren’t questions of medical opinion open to contest?  Why should it be any different when the question at issue is whether an applicant meets the health criteria for grant of a visa? 

In this respect, does the migration law framework afford applicants basic fairness, let alone “procedural fairness”? 

And suppose a child’s parents have a huge amount to contribute to the welfare of Australian society, and have scarce and valuable skills? Where do you draw the line? 

And more still: how compelling does a case have to be in order for the Minister to intervene under section 351? 

All of these important and difficult issues are raised by a case that was the subject of a recent story in the Sydney Morning Herald, reported in the edition of 30 July 2016. 

This article tells about the dilemma of the parents of an autistic child.  According to this report, the parents are both citizens of Bangladesh. The father is a lecturer at Monash University, and the mother is a doctor who is a general practitioner. The family has been in Australia for 9 years.  The news article states that their son has “mild” autism and has been diagnosed as being on the “higher end of the spectrum (of autism disorder) and that his condition is likely to improve over time.  Also, the news story reports that the parents have covered all the costs for their son’s health expenses and that the only cost that has not been covered  by them has been the expense of their son’s attendance at a state-funded special school for autistic children. 

Despite this background, the article reports that the family’s application for permanent residency (presumably under the General Skilled Migration programme) has been refused by the Department, and that the refusal has been affirmed by the AAT (it does not appear that the Tribunal’s decision in this case has yet been reported on Austlii). 

The news article doesn’t provide the details concerning the MOC’s determination of what the likely health care or community services costs would be. 

The family has put in a request for Ministerial Intervention.  

Given the high rate of rejection of these requests (in my experience getting MI takes a major miracle), it would appear that the prospects for their request are not strong – would you agree? 

It does seem like there would have been scope under PAM for a health waiver to have been granted – doesn’t it? 

After all, PAM states that when consideration is being given to whether a health waiver should be granted, factors such as the skills, qualifications and experience of the applicants, including their occupational skills and qualifications and work history, whether the applicant’s nominated application is one that is in demand, and whether the applicant’s family has an ability to mitigate the costs through private arrangements should all be taken into account. 

When you read the news story, and without having any information about the actual severity of the child’s condition or his future prognosis or the actual estimated health care and community service costs that would not be mitigated are, this certainly seems, based on the limited information that is in the story, to be a case that might be one where the  grant of a health waiver seems potentially to have been appropriate.  Especially when viewed in light of the parents’ obvious talents and potential to make a significant and valuable contribution to Australian society. 

If you were counseling the Minister in this case, how would you advise him?

I know what my approach would be.  What about you?

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.