Australian Immigration Daily News

Just in from a RMA member of Migration Alliance:

"I've had a few run ins with DIBP of 4005 health criteria. There are two things that irk me about it and I think it might be open for a challenge, so I thought I'd let you know and if you think there's a case to be made by sharing with other agents in the blog.

PIC 4005 in defining the "period" for consideration states in (2):

(2)  For subparagraph (1)(c)(i), the period is:

(a)  for an application for a permanent visa — the period commencing when the application is made; or

(b)  for an application for a temporary visa:

(i)  the period for which the Minister intends to grant the visa; or

(ii)  if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

Certain visas are then listed in the gazette notice for (2)(b)(ii) for example Subclass 188 Business visa which is the temporary visa before the Subclass 888 visa.

There are two possible issues here.

In Schedule 4, 4005 (2) the "period" considered is based upon (2)(b)(ii) the "period commencing when the application is made". A period by legal definition is a division of time. You would therefore require a start and end point in time. A period cannot be defined by a commencement date only, there must be an end date specified to ensure it is a period, that is a division of time. As there is no end date specified, can there be a period defined ? (Compare to (2)(b)(i) which does actually define a period as the visa grant is for a specific period). How can you legally assess someone against a period, if there is no period defined ? 

It should be noted that under the Migration Act s5 interpretations, "visa period, in relation to a visa" has a definition that includes both a beginning and end. In the absence of any better definition for a period "in relation to a visa" (which is what 4005 period relates to), would this interpretation take precedence to define an end to the period?

The other issue is fairness and possible jurisdictional error. Using the Subclass 188 (temporary) and subsequent Subclass 888 (permanent) visa pathway, during the Subclass 188 application my client is being assessed for the criteria of this temporary visa. My client may or may not apply for the Subclass 188 permanent visa later, and as there is no requirement to do so so it should not be presumed under any circumstance that this future permanent application will be made. 

Keeping in mind that under the temporary visa, my client is not eligible for medicare subsidies and these only kick in under the permanent visa, if and when he makes that application. 

DIBP's current position is they will assess my client under the permanent health criteria for the Subclass 888 visa, when my client makes a temporary visa application for the Subclass 188. They are assessing my client under criteria of a possibly future visa application during the current visa application. This comes about because of the vague period definition used in 4005, and the policy directives. Surely it's a jurisdictional error for an officer to assess a client's with current visa application against the criteria of a possible future visa application? "

Feedback and comments sought.