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We are quite happy to provide those ongoing discussions. It is fairly easy to tell people how it works under the policy, so at any stage we are more than happy to do that. Both the PAM 3 and Legendcom are available to Department decision-makers in the processing of visa applications.
DIAC believes that these systems allow decision-makers to apply the law in a consistent and transparent fashion. It is still the case however that Department decision-makers retain some element of discretion in the decision making process where a waiver is available. This is discussed in the following section. Another issue highlighted to the Committee is the discretion of decision-makers.
The Committee asked DIAC whether it would prefer its officers to have more discretion in the decision-making process. DIAC responded They have in front of them the MOCs assessment and the MOCs assessment of the likely long-term cost of health and community services The Committee asked to what extent there was capacity for a visa decision-maker to decide on compassionate grounds.
Mr Peter Vardos replied So if there is no waiver attached to the particular visa class then that is the end of the story for us. We have no further flexibility and the only pathway open would be to review and, ultimately, to seek ministerial intervention.
I think one of the reasons we are quite happy for this issue to be addressed is because there are cases—whether they fall in the family stream or the skilled stream—where the principal applicant is very worthy of a grant of a visa. But where a member of the family fails a health requirement then our hands are tied. So I sympathise with the issues that are being put to you. The Committee has heard that the decisions of MOCs are final and that they must be abided by Departmental decision makers.
DIAC has also submitted to the Committee There are a number of ways in which additional decision-making flexibility could be introduced, including: allowing an applicant's individual circumstances i. DIAC has qualified this by stating: Careful consideration would need to be given to the range of factors a visa-decision maker could have regard to when considering a waiver for a wider range of visa classes.
Waivers are currently decided by visa decision makers. DIAC would propose to retain this approach for a wider range of waivers, to ensure consistent application of policy settings and given the significant economic implications of a decision to grant a waiver in these circumstances. DIAC may also look at whether if a condition may extensively or substantially prejudice access to services for the Australian community that waiver may not apply in the same manner as public health risks cannot currently be waived.
The Law Institute of Victoria states it also has concerns in relation to the MOCs role in preparing a health waiver costing advice. Professors Ron McCallum AO and Mary Crock have submitted to the Committee that: The best option for returning the regime to one that is not overtly discriminatory towards persons with disabilities is to amend the regulations to allow immigration officials, including merits review bodies, to weigh the costs that might be associated with the admission of an individual with disabilities against the benefits that might flow from admitting the individual and his or her family.
Medical doctors could retain the function of determining the disease or condition affecting the applicant. Immigration officials would then be empowered to consider a range of other factors in making the decision whether or not to grant a visa. The Royal Australasian College of Physicians stated: In Australia, it is the opinion of a single medical officer about the disability condition of a visa applicant that is held sufficient to support adverse differentiation against the person on the basis of disability.
Requiring two or more concurring medical opinions may be an important safeguard against arbitrary or unjustifiable differentiation against the disabled, in circumstances where medical opinions can reasonably differ on questions such as the severity of the disability and the care and treatment and thus the expense required. While there is ordinarily an avenue of merits review in Australia through the Migration Review Tribunal, which can re-evaluate the factual basis of the decision, the Tribunal is not itself a medically-qualified body and is therefore not in a position to provide expert reconsideration of medical opinions as opposed to the weighting and legal evaluation of that expert medical opinion.
Department decision-makers are highly skilled and have a range of resources at their disposal. A limiting factor in the decision-making process, however, is the reliance on a waiver being applicable for that visa class before factors outside of health may be considered. Given the evidence presented, it is apparent that there is little flexibility in the system, especially in circumstances where a waiver option is not available. Many submissions and witnesses commented on the fact that there was a delay in the processing of visa applications.
The Committee understands that the processing of applications is an involved process and may be delayed by such things as the need to seek additional information from applicants or seeking clarification from MOCs regarding decisions.
Some evidence however pointed to unacceptable delays. For example, Mr James Muir told the Committee that in regards to a rejected application on behalf of his sister-in-law It was three years later that we actually received that letter. Ms Knight of the Law Institute of Victoria commented on the delays encountered in processing applications I think it comes back to the transparency about what is being considered and the process It is most acute in offshore offices and health issues And often you will be waiting a year to be looked at by the Migration Review Tribunal Susan Laguna of the Multicultural Disability Advocacy Association told the Committee that: We have been involved in cases where we had to wait for eight to 10 years, by which time sponsors had already died.
There was one case of a family who lives in Albury. The husband had cancer and the wife applied for a carer visa for a relative to come, but he died before the relative could come. There was also one case of a man, about The immigration office dragged its feet and took a long time in processing the child visa application—he had Down syndrome—and the father died, despite the fact that the immigration agent had informed that the father was very sick and wanted to finalise things.
It took about eight years. DIAC commented on the suggestion that there were delays in the system in respect to appeals: As to appeals, the Migration Review Tribunal is an independent body from the department. They do have guidelines, and the principal member issues guidelines to members as to the timeliness of appeals.
But it is not something that the department can directly control. As stated, there are obviously a number of reasons, primarily administrative, as to why delays might occur in the processing of applications. Some of the evidence presented, however, point to unacceptably long delays in communicating decisions to visa applicants.
The Committee considers that the expedient processing of visas is a core function of the Department and undue delays are a serious matter. The Department is urged to consider the reasons behind these delays and identify where the blockages are in the current system.
In regards to the process of decision-making and the capacity DIAC decision-makers to exercise discretion and make individual assessments, the Committee make a number of comments. There is an argument to say that the Health Requirement should form part of a more holistic decision-making process rather than being, in many cases, the factor which will cause a visa to be denied.
The ability to account for mitigating circumstances should be available in all visa streams — family, humanitarian and skilled — not simply for a specified few eligible for waiver consideration, as is currently the case. This should include the economic contribution of the entire family or any significant social contributions — especially in situations where the applicant has strong family connections to Australia. The financial resources that the applicant has at their disposal should be considered, especially where family members have offered to indemnify the Commonwealth in relation to health costs.
In summary, further to the earlier discussion regarding consideration of social and economic contribution, it is the view of the Committee that the capacity to consider mitigating factors should be available across all visa streams and not limited to those with a waiver.
There are a limited number of review mechanisms available to visa applicants. This section considers the Migration Review Tribunal and the Refugee Review Tribunal, and review of a decision through Ministerial discretion.
A waiver consideration gives an opportunity to the applicant to provide information to offset these costs, but is only available for certain limited visa categories attached to PIC or A. If the waiver is not granted the only option is to pursue avenues of appeal through the Migration Review Tribunal MRT. This process of appeal can be expensive and time consuming, particularly for the least advantaged applicants under the system.
Further obstacles are in the legal constrictions and lack of medical expertise of the MRT, which tend to result in a repeat rejection of a visa, making Ministerial discretion the last resort. The MRT reviews decisions made in respect of general visas e.
All Members and staff are cross-appointed to both Tribunals and the Tribunals operate as a single agency for the purposes of the Financial Management and Accountability Act DIAC advised: The primary objective of merits review is to ensure that the correct or preferable decision is reached on the facts before the review body.
The Tribunals, in addition to the Tribunal's specific powers, operate within the same legislative framework as the visa decision makers. Therefore, the Tribunal, like the visas decision maker, is bound by the findings of the MOC reg. The Tribunal however, can consider new information.
The MRT was also bound to accept the view of the CMO of the 'costs' of the person with disability and is not empowered to take into consideration the factors which led Evans to reverse the MRT's decision, namely the benefit to the community of the family as a whole.
DIAC noted in this regard that: If they have a review right to the MRT, they can actually get a formal second opinion—a review medical officer for the Commonwealth appearing as part of that review. So that is a formal right to get a second opinion. Ministerial intervention is also available where the decision by the Department is affirmed by the Tribunal. When asked as to whether the MRT takes into account the fact that an assessment is being made on a child, for example, whose potential is yet to be reached, Mr Papadopoulos told the Committee It largely relies on the applicants and their representatives to put forward information to it and to put the arguments forward The MRT itself stands in the shoes of the departmental decision maker and the process is simply repeated; they just rely on the opinion of the review medical officer of the Commonwealth and, like the minister and the delegate, are bound to apply it.
The impact of the current attenuated review process was regarded as particularly detrimental to the family reunification of refugees and humanitarian entrants. So those are additional costs, and that happens quite often. People often do not understand the process, and a lot of time, effort and money have to be put into convincing them that they have not been abandoned by their relative in Australia. Essentially this occurs when an applicant has exhausted all other avenues to successfully be granted a visa to either migrate to or remain permanently in Australia.
The exception to Ministerial discretion, according to the Law Institute of Victoria are: Health requirements relating to a tuberculosis or b other threats to public health in Australia or dangers to the Australian community cannot be waived by the Minister in any case. Evidence to the Committee suggests that the process of Ministerial discretion is relatively discretionary and many applicants that reach this stage do so following extensive media coverage of their cases. DIAC states: Where the Tribunal is required to affirm the Department's refusal decision, it is; however, open to the applicant to request that the Minister intervene in his or her case.
The Minister is then able to take into account the applicant's individual circumstances, including any compelling or compassionate reasons why a visa should be granted. Earlier this year I assisted a family awaiting ministerial intervention on their application for permanent residency as one of them had failed the health requirement as they had been diagnosed with HIV.
In this case the family were more than happy and capable of providing the medical care when and if required for their family member's illness. They run several successful businesses in the local area and employ a number of Australians. Their daughter has just started at a local school and only knows Australia as her home. They love the lifestyle, people and culture of Australia and want nothing more than to permanently settle here. This family put in an application for permanent residency knowing that it would be refused and then refused again on appeal to the Migration Review Tribunal, leaving ministerial intervention as the only option for a grant of permanent residency.
After personally meeting with them I could see first hand the emotional toll the uncertainty of their application was having on them. There obviously needs to be reform to a system that makes ministerial discretion the only avenue for this family to gain permanent residency. I first had to apply for an opinion from a review medical officer of the Commonwealth, as the Migration Review Tribunal could only overturn the decision if the review medical officer of the Commonwealth overturned the opinion of the medical officer of the Commonwealth, which was based on the report of the panel doctor.
I was then able to appeal to the Minister for Immigration and Citizenship to request that he exercise his public interest powers, which enabled him to grant me a more favourable decision than the MRT and ultimately enabled him to grant Una a visa.
Even if the minister decides to grant her a visa, it is my understanding that he is not compelled to grant Una the visa that she has applied for. Instead, he can decide to grant her a visa in a different class. Uniting Justice in Australia states: While the Health Requirement is waived for some refugees and migrants by ministerial discretion, this exemption process is arbitrary and inconsistent. Griffith University. Library Library guides Law Get Started.
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