Schedule 4- Cost to the community

[Robert K Chelliah]

I am juggling with a response to an invitation to Comment - Natural Justice. My client is asessed with lifelong infection with Hepatitis B . She is required to be on a theruepetic antiviral medication with no foreseeable damage to her liver or leading to other medical conditons. The MOC has deemed her condition to be of significant cost to the Australian community under Schedule 4 Item 4005. The relevant subclause reads :

A) result in a significant cost to the Australian community in the areas of health care and community services; or

The client's monthly medication (non generic) costs AUD 970 per month with one monitoring visit to the clinic every 12 months.

My 32 year year old client is a nurse under sc 457 and her spouse is also under 457 as a medical practioner. The nurse has applied for SC 175 (No MRT appeal if refused).

In seeking the comment under Natural Justice the case officer emphatically states " ..Please note that information of a non-medical nature cannot be considered ."

The issue is "is it net cost to the community or gross cost to the community?

The medication cost would be AUD 1000 per month X 12 months X 5 years = AUD 60000 / 50% = AUD 30,000 .

My client and her spouse pay AUD 31,000 tax per year X 5 years = 155,000 as payment to the tax revenue to the community.

Would I be correct to calculate the net cost to the community (a gain ), in calculating the cost to the community. The putative intention of the legislators, under natural justice, is to consider the net loss, if one is to consider the equation of net cost.

I dearly would love some second opinion on my thinking.

Robert K Chelliah
Email: rkc@austmigration.com.sg

[Glenn Pereira]

Robert,

In my opinion Natural Justice does not apply for off-shore visa.



SECT 51A
Exhaustive statement of natural justice hearing rule

(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

SECT 494A

Giving documents by Minister where no requirement to do so by section 494B method

(1) If:

(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and

(b) the provision does not state that the document must be given:

(i) by one of the methods specified in section 494B; or

(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note: Section 494D deals with giving documents to a person's authorised recipient.

(2) If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:

(a) the individual has day‑to‑day care and responsibility for the minor; or

(b) the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual's duties, whether alone or jointly with another person, involve care and responsibility for the minor.

(3) However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.

(4) If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.


SECT 494D
Authorised recipient

(1) If a person (the first person ) gives the Minister written notice of the name and address of another person (the authorised recipient ) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.

Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

(3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.

(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.

(5) The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, if:

(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and

(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and

(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).

[Robert K Chelliah]

Glenn

Thank you for the response. My concern was for the equation of net or gross cost to the community.

"Significant cost to the community" as in the construct of item 4005 embraces all costs, but does it preclude any fiscal gain the community gains from the applicant, fiscal gain in the form of tangible annual tax contribution, where the medical opinion states she is capable of continuing to work for long term (she is 32 years).

My thinking is "cost to the community" , in actual computed $s, ought to take into account the net cost. I will advance this argument in asserting that net cost is minimal, if any , and is offset by annual income tax payments.

Robert K Chelliah
www.austmigration.com.au

[Robert]

This is a robust argument in the Federal Court. I was the Migration agent at the MRT appeal . It appears a person with cerebal palsy even if capable of living without any cost to the community or in need of any medical or thereputical institutional care will fail the schedule 4005, health requirement.


http://www.austlii.edu.au/au/cases/cth/FMCA/2010/6.html


Robert K Chelliah
www.austmigration.comau

[Robert]

Regarding the above outcome, disappointed I am. The argument at the Federal Court, mounted by a QC and competent lawyers for the review applicant mounted a very robust argument at a higher level than at the MRT. I had submitted my full MRT case file to them with my views for the judicial appeal under jurisdictional error. The court was not called to decide on the merits of the substance, but to consider if an error of law had occurred procedurally. The court found no error in law (jurisdictional error) had occurred.

As both the MRT and the judicial hearing are now public documents, and without infringing privacy issues I can disclose that from the very onset at the MRT I asserted that:

a) Based on the precedent setting principle of Robinson case, we submitted that the MOC should consider the nature of the disability of the individual against the intention of 4005, in that:-

i. Visa applicant, in all probability, would not require income from public purse as a sizeable 6 figure trust fund for him is in place which that would cut him off from Centrelink means test for any income.

ii.) He had income generating investments for the rest of his life, and that he would be a tax paying member of the Australian community and not a liability (cost) to the community,

iii.) A long term, well established family business in WA, employing a large number of employees and a large warehouse, had formally resolved to offer him a full time job for the rest of his working life, congruent to his disability

iv) a leading neuro physician (Prof Gubbay), has opined that his disability is moderate, that it is well stabilised and contained, that he would not need any extraordinary medical treatment or any expensive medication and by his previous life pattern he would not need any institutional care.

v) the physiotherapist confirmed the he is capable of functioning about 95% independently

vi) each of his 6 siblings gave a written undertaking that they will provide the 5% care for the rest of his life,

vii) the family had constructed a modified room in their large family home where the visa applicant had space to suit his wheelchair bound mobility of 95% independent life style. He had demonstrated independent life style including using special taxi services and doing voluntary work in a public hospital.

All the above claims were backed with hard evidentiary documents.

The MOC and the RMOC, in their responses to the MRT requests for "lawful decisions", did not address these factors, and remained silent as to what weight was given to them, if any.

In the submission to the MRT I relied on the principle derived from a Federal Court case (sorry cant recall the full case ref) that stated that:

“The delegate (read MOC and the RMOC) should consider all the facts and circumstances and engage in a balancing exercise of all facts, events and circumstances. In the counterbalancing exercise equal weight should be given to all the facts to arrive at an equitable and fair decision. As in para 15 of our submission, in the cited case of “ Dhillon” the presiding Judges observed in para 10

'It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision. If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision. Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts.'

In the end, it appears that the mere existence of a medical condition is sufficient to fail to meet the 4005, irrespective of the nature of the disability.

It is for lawyers to debate the merits of the outcome of the judicial hearing, as it is riddled with too many complex legal technicalities of procedures.


Robert K Chelliah
www.austmigration.com.au

[Sheelagh Blanckenberg]

Hi Robert

This is a very disappointing outcome for many people with disabilities.

Please make a submission to the The Federal Parliament’s Migration Committee on this outcome. As you know, the Committee is half way through a report on disability and migration and this recent tribunal finding needs to be brought to their attention. It is quite frankly disgusting.

Michael Danby, the committee's Chair, made the following recent comment ‘The Committee’s investigations last year highlighted the conflict between Australia’s human rights commitments to protect family unity among Australian expats, skilled migrants and refugees, and the impact of migration assessment which may exclude dependent children or other family members from residency because of their disability’.

Mr Danby further stated: ‘Advocates for people with disabilities recognise that a strong family unit is the most effective support and safeguard for them. Australian migration law should maintain the entitlement of children and adults with a disability to their family’s continuing support.’

‘With Australia Day just celebrated, it should also be remembered that Australia’s success as a multicultural nation has been built on the energy and commitment of migrant and refugee families. The Committee will consider how this can be better recognised in migration evaluations of family members with a disability’.


For others with an interest in the migration treatment of disability in Australia and would like more information, including a full programme of proceedings and the inquiry terms of reference, visit the inquiry website at www.aph.gov.au/house/committee/mig/disability/index.htm or contact the Committee Secretariat on (02) 6277 4560 or e-mail jscm@aph.gov.au.

If this matter affects you or a loved one, please have your say! The committee needs to hear from everyone and anyone who is or has been affected by our regulations regarding disabilities.

[Migration Help]

ALECIA SIMMONDS
February 4, 2010

Migrants should not be assessed solely on their economic worth.

IN 1914 a group of prominent eugenicists in America declared: ''The feeble-minded person is not desirable, he is a social encumbrance, a financial burden. In short, it were better for him and for society had he never been born.''

Early 20th-century eugenicists loved the term feeble-minded. It referred to those with intellectual or physical impairments and was flexible enough to cover the poor, blacks and prostitutes. The feeble-minded were a social encumbrance, a financial burden and a frightful deviation from physical and intellectual ideals. The term has since lost currency and the science of eugenics rose and fell with the Third Reich. But the ideas still thrive today.

A Senate committee inquiry into the migration treatment of disability in Australia is revealing that Australia systematically discriminates against people with impairments. The committee, which has been holding public hearings in capital cities and will continue to do so throughout the month, is assessing the appropriateness of health tests for people wanting to migrate to Australia.

Under the Migration Act, people with impairments have their disability taken into consideration in meeting the health criteria as a condition of entry. The Disability Discrimination Act is suspended for the purposes of the Migration Act. As a result, disabled people are automatically excluded from consideration.

Gordon Brown, with his visual impairment, Helen Keller and Stephen Hawking would be denied residency in Australia.

Why? Because their disabilities are seen as imposing too much of a financial burden on government services and supports. The contribution that they could make to Australian society is not considered. Disabled people are simply not cost-effective.

The legal and policy reasons for revoking this discriminatory test are boundless.

First, it places Australia at odds with its international obligations signed and ratified in the UN Convention on the Rights of Persons with Disabilities in 2008. The convention prohibits states from discriminating against disabled people and binds them to make reasonable accommodation for the disabled. This means that Australia now already has a responsibility to provide services to the disabled.

Providing services to disabled migrants should not be an additional cost. It is simply a prerequisite for having a society that supports access and inclusion for all people, not just a certain proportion.

Second, to reduce a person to their economic worth negates the myriad ways in which they can contribute to society. The current test means we not only fail to attract highly skilled migrants for urgently needed jobs but that we also reduce a person's worth to their revenue-earning capacity.

People can contribute to society in ways other than through cash. This doesn't mean that the government should not consider cost. It simply means it should also consider contribution. Almost all countries allow migration officials this discretion, particularly when families are involved. The restrictive nature of Australia's health test places it at odds with most developed Western countries.

The singular focus of the test on cost appears ludicrous when we see how it applies to families. At present, if a couple on a 457 temporary visa in Australia have a child with a disability they will fail in their application for a permanent visa.

One highly publicised case was that of Bernhard Moeller, who worked for two years as a doctor in a small town in Victoria. Despite Australia having a clear shortage of country doctors, Moeller was told in 2008 that his son's Down syndrome meant that his family could not gain permanent residency.

The contribution the family as a whole could make was ignored. Disability was equated with burden.

Moeller was eventually given a permanent visa, but only after a nationwide community and media campaign forced Immigration Minister Chris Evans to intervene.

Moeller also, despite his battle, eventually left Australia following a work dispute. The point, however, is that his case should never have occurred in the first place.

All migration officers should have the capacity to consider the contribution a person and a family can make to the community. They should not be bound by a medical assessment of one member's cost.

Australia's present migration policies are an arcane legacy of a ''medical model'' of disability that ascribed fault to the person, rather than seeing disability as something that is socially defined.

According to the social model adopted by the UN, if a deaf person cannot enjoy the cinema it is the cinema's failure to include captions that is at fault. If a person in a wheelchair cannot access a building it is the architect's inability to envisage a ramp that is at fault. The cost of providing these services is simply part of the cost of having a society that embraces diversity.

Disability is a fact of life. Not only are physical and intellectual impairments part of human diversity, we often forget that we will all be disabled by age or illness at some stage. Rather than place such a vast psychological and territorial gulf between those with and those without impairments, we need to recognise the fragility and impermanence of our physical and mental health. Even more, we need a state that recognises the contributions people can make in spite of, and often because of, their physical or mental difference.

Migration policies are a means of publicising Australian values to the rest of the world. For us to present ourselves as a socially inclusive society we need to remove the barriers that reject human difference at the door.

Alecia Simmonds is a researcher in the field of health governance and a teacher at the University of Sydney in the departments of history and law.

SOURCE (http://www.theage.com.au/opinion/society-and-culture/barring-disabled-migrants-makes-australia-the-loser-20100203-ndeb.html)

MH

[digger]

I am not a researcher like Alecia but it would be interesting to get more facts, ie.
with for instance
First, it places Australia at odds with its international obligations signed and ratified in the UN Convention on the Rights of Persons with Disabilities in 2008. The convention prohibits states from discriminating against disabled people and binds them to make reasonable accommodation for the disabled. This means that Australia now already has a responsibility to provide services to the disabled.

Is Australia at odds?
For could it be that where the convention is for states discriminating against disabled people, could it be that is to be interpreted in regard to a state discriminating against their own citizens.

The trouble with a lot of conventions and even legislation is that the argument is always that it was drafted with such and such an intent and then in attempting to prove or disprove intent the legal system can take us on another very torturous trip.

When you see something like
All migration officers should have the capacity to consider the contribution a person and a family can make to the community. They should not be bound by a medical assessment of one member's cost.

It is good that Alecia is a researcher and not an immigration officer nor one charged with the task of drafting legislation.

Without migration officers having to abide by legislated regulations, what kind of chaos would we have!

[Sheelagh Blanckenberg]

I

It is good that Alecia is a researcher and not an immigration officer nor one charged with the task of drafting legislation.

Without migration officers having to abide by legislated regulations, what kind of chaos would we have!

Very valid points Digger. Chaos indeed.