The migration law health requirement AFAO Worksop - 24 September 2009

1. The migration law health requirementAFAO Worksop - 24 September 2009 Peter Papadopoulos Solicitor and Registered Migration Agent (MARN 9791442) Telephone: (02) 9331 5656 Website: www.mpeonline.com.au/peter.html

2. Scope of presentation • Why is the migration law health requirement relevant to the current Inquiry into the Migration Treatment of Disability? • What is the health requirement? History and current legal and policy framework • The DIAC decision-making process • Key problems with the health requirement • Possible suggestions for reform: a new approach? • Questions…

3. Relevance to the JSCM Inquiry After some lobbying, these additional words were added by the Joint Standing Committee on Migration to the Government’s proposed terms of reference for the Inquiry: Submitters may wish to refer to Schedule 4 of the Migration Regulations 1994, which specifies the health requirement for visa applicants and outlines the considerations that apply for applicants with a “disease or condition”.

4. Background to the migration law health requirement - some history An early version of the health requirement can be found in subsections 3(b)-(g) of the Immigration Act 1949 (Cth) specifically excluded anyone who did not have a: “prescribed certificate of health; any idiot, imbecile, feeble-minded person, epileptic, person suffering from dementia, insane person, person who has been insane within five years previously, or person who has had two or more attacks of insanity; any person suffering from a serious transmissible disease or defect, any person suffering from pulmonary tuberculosis, trachoma or with any loathsome or dangerous communicable disease, either general or local; any person who, in the opinion of an officer is likely, if he enters the Commonwealth, to become a charge upon public funds by reason of infirmity of mind or body…any person suffering from any other disease, disability or disqualification which is prescribed” .

5. Overview of the current health criteria One of three criteria in Schedule 4 to the MR will apply to a visa applicant depending upon what visa they have applied for (except Protection Visa applicants) • PIC 4005 - “standard health requirement” - no waiver possible - applies to many visas (e.g. general skilled migration, student, tourist visas etc.) • PIC 4006A - “standard health requirement” but waiver possible if employer signs undertaking - applies to 418 and 457 visas • PIC 4007 - “standard health requirement” but waiver possible if costs or prejudice not undue - applies to some family, humanitarian, second stage business skills, permanent sponsored skilled visas

6. The standard health requirement The applicant: (a) is free from tuberculosis; and (b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and (c) is not a person who has a disease or condition to which the following subparagraphs apply: (i) the disease or condition is such that a person who has it would be likely to: (A) require health care or community services; or (B) meet the medical criteria for the provision of a community service; during the period of the applicant’s proposed stay in Australia; (ii) provision of the health care or community services relating to the disease or condition would be likely to: (A) result in a significant cost to the Australian community in the areas of health care and community services; or (B) prejudice the access of an Australian citizen or permanent resident to health care or community services; regardless of whether the health care or community services will actually be used in connection with the applicant; and (d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment, the applicant has provided such an undertaking.

7. Waivers of the standard health requirement • PIC 4006A - “The Minister may waive the requirements of paragraph (1)(c) if the relevant employer has given the Minister a written undertaking that the relevant employer will meet all costs related to the disease or condition that causes the applicant to fail to meet the requirements of that paragraph.” • PIC 4007 - “The Minister may waive the requirements of paragraph (1)(c) if (a) the applicant satisfies all other criteria for the grant of the visa applied for; and (b) the Minister is satisfied that the granting of the visa would be unlikely to result in: (i) undue cost to the Australian community; or (ii) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.”

8. The decision-making process: PIC 4005 • Visa application lodged - health declaration information as part of application form • Applicant undertakes health checks, where required - radiological (Form 160) and / or medical examination (Form 26) with Panel Doctor (offshore) or Health Services Australia (onshore) • Medical Officer of the Commonwealth (MOC) forms Opinion • If MOC Opinion adverse, DIAC forwards it to the applicant for comment within a prescribed period - a natural justice / procedural fairness obligation • Applicant provides comment to DIAC - can the MOC’s Opinion be challenged? e.g. provision of further expert medical opinion and other information relevant to the MOC’s assessment • DIAC considers the applicant’s comment - N.B. fresh medical evidence is referred to the MOC for reconsideration of the matter that can sometimes lead to a favourable MOC Opinion. If no fresh medical evidence, DIAC bound to follow the MOC Opinion and therefore DIAC officer refuses the visa application for failing to meet the health requirement.

9. The decision-making process: PIC 4006A and PIC 4007 - the health waiver • Visa application lodged - health declaration information on application form • Applicant undertakes health checks - radiological (Form 160) and / or medical examination (Form 26) with Panel Doctor (offshore) or Health Services Australia (onshore) • MOC forms Opinion and Health Waiver Costing Advice, if Opinion adverse • Where MOC Opinion adverse, it is forwarded by DIAC to the applicant along with Health Waiver Costing Advice for comment within a prescribed period - a natural justice / procedural fairness obligation • Applicant provides comment to DIAC, including all submissions and evidence in support of a request for a waiver • DIAC case-officer considers health waiver request • Different criteria and internal DIAC procedures for assessing waiver under PIC 4006A (employer undertaking required) and 4007 (cost / prejudice not undue) • If waiver request refused, visa application will be refused. Otherwise, if request approved, visa will be granted.

10. Key problems with the health requirement • Complexity - Why is the law and policy in this area so difficult to understand and administer? • Inconsistency - Why should the waiver only be available to some visa applicants and not all? • Transparency - Why aren’t the Notes for Guidance publicly available and thereby open for comment / critique? • Currency - Why aren’t the Notes for Guidance frequently reviewed to ensure that they are up-to-date and therefore decisions based upon them are accurate? • Quality - Are MOCs qualified to make medical assessments in relation to disabilities, such as HIV/AIDS, if they are not specialists in that area? Are MOCs qualified to make assessments as to future costs estimate trajectories? Should such cost-related decisions be made by health economists /actuaries instead? If so, who would employ them and what criteria should they consider (e.g. TRIPs Agreement, discounted cost modelling)?

11. Some suggestions for reform • That there be no health requirement at all, but still retain some legal mechanism to ensure that there is no threat to public health • unlikely given ageing and rapidly growing population and burgeoning health care costs upon the Commonwealth / public purse • That disabled visa applicants be exempt from the health requirement or at least the cost / prejudice criteria • unlikely given the varying statutory and other definitions of “disability” and the ensuing advantage that will be given to disabled applicants over other applicants if implemented • That section 52 of the Disability Discrimination Act 1992 (the provision exempting the migration law health requirement from the DDA) be removed or qualified • unlikely to be removed and this may be justified on the grounds of sovereignty • BUT some advocates maintain that it must be qualified to ensure compliance with Article 5 of the UN Convention on the Rights of Persons with Disabilities which provides State Parties must: • recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law • prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. • promote equality and eliminate discrimination by taking all appropriate steps to ensure that reasonable accommodation is provided. • Such qualification could include making special health waiver criteria available to disabled visa applicants which is the subject of the current JSCM Inquiry.

12. Other suggestions for reform: a new approach? • Reduce Complexity - Simplify the law by making the health waiver for costs / prejudice a separate criterion to those matters relating to tuberculosis and threats to public health. • Reduce Inconsistency / Increase Equity - Make the health waiver equally available to any visa applicant who fails the health requirement on the basis of costs / prejudice. However, while similar waiver factors should apply to all applicants, special consideration should be given to the merits of each case. • Increase Transparency - DIAC to publicise all Notes for Guidance and the Minister to Gazette all diseases / conditions of concern to Australia in terms of costs / prejudice so that public can debate the issue and more visa applicants are aware of the prospects of refusal prior to application lodgment. • Improve Currency - Notes for Guidance to be reviewed by specialists at least annually and when a significant change in treatment occurs that will impact costs / prejudice outcomes (see Recommendation No. 2 of ANAO Audit Report No. 37, 2006-07 and in 2002 and 2003 ANAO Audit Reports). • Increase Quality - MOCs to be qualified disability specialists and obtain specialist training in making medical assessments in relation to the form / level of a visa applicant’s disability. MOCs should provide Opinions only, while health economists should provide Health Waiver Costing Advices based upon current data / research and accepted modelling .

13. Questions and comments