Migration Health Requirement

[Migration Help]

Dear forum readers,

An Australian parliamentary inquiry into the health requirement under the MIgration Act has been called for.

The health requirement is designed to protect Australia from public health risks, contain public expenditure on health and community services, and maintain access of Australian residents to those services.

Disability does not in itself mean that a person or a family will be refused a visa. However, as part of the health test, applicants with a ‘disease or condition’ are assessed on the potential cost and impact on Australian health and community services.

The Joint Standing Committee on Migration will look at whether visa decision-makers should be able to take into account the social and economic contribution, as well as the anticipated health care costs, of potential migrants identified as having a ‘disease or condition’. Following the inquiry the Committee will make recommendations to the Government about potential changes.

If you’ve had issues with the health requirement and would like to tell your story, please think about making a submission to the inquiry.

Submissions are open to all and can be of any length. Further information about making a submission can be found here:
Inquiry into the migration treatment of disability (http://aph.gov.au/house/committee/mig/disability/index.htm) .

Alternatively, post any questions you may have on this forum for one of our contributors to answer.

[Robert K Chelliah]

The Commenwealth Medical Officer used the construct of item 4005 , medical condition and cost to the community, in a generic form until the Robinson case compelled the CMO these days to consider the medical condition and its efffect on the cost to the community in a specific manner to the person with the health condition.

The Robinson Case gives relief to visa applicants if it can be shown that the CMO has failed to consider the specific nature of the medical conditon. Generally one also has to show that the cost of their medical conditon is is within the Australian population norm in terms of cost and contribution for that condition. We have a case in the Federal court on this very principle.

Robert K Chelliah
RMA 9254011
Tel: 08 92464088

[Robert K Chelliah]

Further to my posting above the link to the the very important precedent setting case is as

Robinson v Minister for Immigration and Multiculturaland Indigenous Affairs (with Addendum dated 18 November 2005) [2005] FCA 1626 (10 November 2005)
Last Updated: 21 November 2005

FEDERAL COURT OF AUSTRALIA


Robinson v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1626



Robert K Chelliah


ADDENDUM

[Robert K Chelliah]

For those agents and members of public with Item 4005 this is how I used Robinson case to argu in the MRT and we won. A small portion of my argument is reprodeuced here to show how I made use of Robimson and other cases to win.

(3) The Minister is to take the opinion of the Medical Officer of the Commonwealth on a matter referred to in subregulation (1) or (2) to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion. XXXXX XXXXX .................... xxxx...

3.6. In the application of the above Regulation by the CMO we draw the Tribunal’s attention to Robinson v Minister for Immigration and Multicultural and Indigenous Affairs ( with Addendum dated 18 November 2005) [2005] FCA . His Honour J Siopis in this case refers to the notion of Proper Test to be observed by the CMO and rules,

Quote:
“The disposition of the application therefore, depends upon three issues:
(a) a construction of the Regulations to determine the proper test by which a MOC is to assess the matters referred to in Public Interest Criterion 4005(c) of the Regulations;

(b) whether the Tribunal committed jurisdictional error in the way in which it approached the question whether to accept the opinion of the RMOC as correct pursuant to reg 2.25A(3) of the Regulations; and

(c) if the Tribunal did commit jurisdictional error, whether, as a matter of discretion, I should refuse to send the matter back for determination by the Tribunal according to law.
The proper test

I turn to deal with the first issue. In my view, the applicant’s submission as to the appropriate test to be applied, is to be accepted. A proper construction of Public Interest Criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.” (Emphasis added) Unquote.

3.7. Further, in the same case his Honour citing Imad v Minster for Immigration and Multicultural Affairs {2001} FCA [14] in the consideration of the PIC 4005(c) of the Regulations said

“ The intention behind this regulation is understandable, particularly in the light of reg 2.25A. One would expect that a medical officer would be able to assess the nature of a disease or condition and its seriousness in terms of its likely future requirement for health care. On the other hand, one would not expect a medical officer to inquire into the financial circumstances of a particular applicant or family members or friends or other sources of financial assistance. (emphasis added)

3.8. In the case of Ramlu v Minsiter for Immigration and Anor [2005] FMCA [10] Mr. Karp, Counsel for the Applicant , submits
“ that the issue here is not whether the RMOC addressed the relevant legislation in form but whether she had properly turned her mind to it. The bare recitation of the criteria without reference to the diseases or conditions suffered by the applicant or a person in the position of the applicant, or to the nature or extent of cost or imposition upon the community, indicates, in Mr Karp’s submission, that constructive failure.”

4.0. Here we submit that the Tribunal however is left to its own discretion to what extend it is bound by the CMO’s opinion if it was found to be an unlawful opinion. We submit, with due respect, that by precedent, it is not strictly bound by the opinion of the CMO, especially if his opinion is based on an assessment at a higher level of generality and probability than the specific likelihood of XXXX XXXX requiring health care which is likely to result in significant cost to the community. In the Federal Court case of Imad it was established that condition 4005( c) (ii) (A) requires the objective test of likelihood based on the applicants diagnosis and not simply just a possibility based a higher level of generality.


I have other 4005 cases that I have sucessfully won in the MRT, excpt one which is with the Federeal court .

I am happy to provide Pro Bono advise to others.


Robert K Chelliah
RMA 92-54011

[Sheelagh Blanckenberg]

Thanks for your post Robert and your kind offer to assist with similar cases on a pro-bono basis.

There are many people whose visas get knocked back on health reasons either for themselves or family members, and who just accept the rejection without looking more into the options available. Which is a shame as the refusal may be reviewable and may be overturned.

In addition to not knowing that this review opton may be available, the review process, like many legal processes, is perceived to be scary and of course costly which also puts people off.

[Robert K Chelliah]

Sheelagh

My Pro Bono work is limited to assesment and advise and strategy setting. I would not be able to complete the the ground of appeal and submit the appeal and act for the client as a full pledged representative on pro bon basis, unless there are very exceptional compelling grounds. I hope you understand.

And you dont have to be a qualified lawyer to underatke sucecsfully cases to MRT level. MRT works on principle of substantial natural justice , a principle that is inborn and inherent in many of us. An MRT appeal for a 4005 item should not exceed AUD 6000 . For me it is capped between AUD 4000 to 6000. I hope this is not considered expensive and I have maintained a 99 % sucess, demonstarbly. Incidentally, i am no soliciting for clients here as I have a heavy case load to keep me fully occupied, but am committed to make this forum, SAFE, USEFUL, RELEVANT and ENRICH the lives of others through the Independant Forum..

Robert K Chelliah
RMA 9254011
TEl 08 92464088

[Sheelagh Blanckenberg]

Thanks for the clarification Robert.

[Robert K Chelliah]

Additionally,

The construct of 4005 through policy precludes socio-economic circumstances of the applicant for consideration and to be irrelevant. In a few cases I have succesfully submitted that the CMO to take into consideration the putative intentions of the legislators of schedule 4, Item 4005 , as the " cost to the community" " employabilty " of a person with diasablity do in fact refers to cost in terms of $$$$$.. It cannot be excluded if one has to consider congruency of applicants assets and the construct of 4005 and therefore the basis for inclusion in the making of a statutory decison.

The socio econmic and assets facotor should be made inclusive both in legilslation and admin policies. I hope anyone any one making the submission to the inquiry would include this aspect.

Robert K Chelliah
RMA 92-54011
Tel: 08 92464088