December changes - Who "cares"?

In this edition we detail the changes to the "special need relative" category that come into effect on 1 December, and we look at some recent use of the power to refuse visas based on character assessment

For other changes taking effect this month, see the November issue and the Department's information sheet at http://www.immi.gov.au/general/cis1298.htm

From "special need relative" to "carer"

The latest target of the government's program of removing "non-economic" considerations from Australia's immigration program is the long established "special need relative" category. The official media release uses the standard excuse about "the system being rorted", the one every government agency uses when it wants to cut back on a service or benefit. And again, it's the usual suspects who are blamed: review tribunals and the Federal Court. The Minister expresses outrage that "We have seen ailments such as 'homesickness' and the need for child care become an acceptable special need". If the Minister is reading this (we will send him a copy), perhaps he could provide the case references.

At this point it might be worth remembering exactly what was meant by a "special need relative" in the Regulations:

a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii) welfare, hospital, nursing or community services in Australia.

The strictness of the the requirements is reflected in the number of visas granted each year: according to the media release, "approximately 200-300". One would have thought that if the Minister's advisers were so sure there was rorting they would have a better idea of exactly how many visas are involved.

The replacement category is to be called a "carer", but it is not the title that matters. Under the new rules, the Australian resident will have to submit to a medical examination by Health Services Australia (a government funded body) to determine whether they have a "medical condition" that puts them within an "impairment rating" under the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991. The actual rating that will be sufficient for the visa will be notified by the Minister in the Gazette.

A further amendment requires that "an application by a person claiming to be a carer must be accompanied by satisfactory evidence that the relevant medical assessment has been sought." This means that an application for assessment must be lodged with HSA before the visa is applied for, or else the application will be invalid.

One obvious concern about the new category is that it is limited to medical conditions that are themselves defined in terms of a scale designed to assess work-related impairment. Under the old definition, it was possible to take into account specific cultural issues that might seriously affect the quality of life of an Australian of non-English speaking background but which are unlikely to be given much weight by HSA.

Media release: http://www.minister.immi.gov.au/media98/r98151.htm

Protecting Australia from bad characters

While the government's proposed "Strengthening of Provisions relating to Character and Conduct" legislation remains before the Federal Parliament, it is clear that immigration decision makers have got the message to take a hard line on "character". The current legislation gives the Minister a broad discretion to refuse or cancel a visa where he forms the view that the person concerned is "not of good character". The power is available if the Minister:

(a) having regard to:

(i) the person's past criminal conduct; or

(ii) the person's general conduct;

is satisfied that the person is not of good character; or

(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

The fact that the Minister is satisfied that the person is "not of good character" does not mean that the visa must be refused. The Minister then has a discretion to decide whether to grant the visa or not. On appeal, the same discretion is exercised by the Administrative Appeals Tribunal (AAT). As would be expected, the seriousness of the applicant's character flaws are to be weighed against other factors including the interests of Australian citizens.

In practice, however, neither the Minister nor the AAT gives very much weight to the interest of Australians such as spouses or children of visa applicants, especially where the "conduct" involved is past breaches of immigration law. AAT cases are on the public record, and it is possible to see how far the authorities are prepared to go in "protecting the integrity of the immigration system" in cases such as Re Medyanto, which involved an Australian citizen who had married a Filipino unlawful non-citizen. The couple had an infant child and the husband returned voluntarily to the Philippines to apply for migration as the spouse and father of Australian citizens. Before doing that, however, his wife took their baby to see if they could live in the Philippines together. The baby got sick and with little income to get medicine they had no choice but to return to Australia. Despite the obvious interests of two Australian citizens, one an infant, both the Minister and the AAT considered that the man's previous use of a false identity to enter Australia was so reprehensible and represented such a danger to the "integrity of the immigration system" that the family would have to remain separated forever.

More recently, a case has come to our office involving a person who did not even use a false identity while in Australia, but merely overstayed. Once again, the interests of the Australian citizens involved were ignored.

Paradoxically, this approach is likely to lead to more breaches of the immigration laws, rather than fewer. The authorities regularly argue that "the spouse knew about the person's immigration status when they got married", as if people make choices about their life partnerships based on visa status. When children are involved, of course, the argument carries even less weight, since none of us have the luxury of choosing our parents. Real human beings in these situations are hardly likely to take the same view of the "integrity of the immigration system" as the Minister and AAT, and faced with the prospect of splitting up their family they may well choose to continue living a life of precarious illegality.

If passed, the new legislation will give the Minister the extra advantage of being able to simply disregard any findings of the AAT either before, during or after a review, and impose his own view based on a totally undefined concept of the "national interest". With this power of absolute personal veto in his pocket, the Minister will hardly seem to need the other changes which will include a reverse onus of proof (in other words, you are guilty until proven innocent) and a hard-and-fast definition of "bad character" which would require Nelson Mandela to apply for and obtain a special dispensation to visit Australia.

The text of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1988 is available in PDF format at http://www.aph.gov.au/parlinfo/billsnet/98141.pdf
You can also read the offical Explanatory Memorandum at http://www.aph.gov.au/parlinfo/billsnet/1e98141.pdf
The text of the Medyanto case is at: http://www.austlii.edu.au/au/cases/cth/aat/unrep6991.html

Details of July 1999 changes announced

As we go to press, details of a major overhaul to the independent and "skilled Australia-linked" points test have been released by the government. The new arrangements take effect from 1 July 1999.

Significant new features include the requirement that applicants specify the occupational category against which they wish to be assessed and obtain their assessment from a nominated Australian professional or trade authority before applying for migration. Extra points will be awarded for occupations in demand, as well as for qualifications held by the spouse of a principal applicant.

We will analyse the new requirements in more detail in future editions of this Update.

See the DIMA fact sheet at http://www.immi.gov.au/facts/36changes.htm

Hot links

With each edition of Australian Immigration Law Update we will try to find some new or interesting sites that you might enjoy visiting. This month, you might like to try out some of these:

http://www.onlineaustralia.net.au/ - a new website set up by Online Australia through the National Office for the Information Economy
http://dir.yahoo.com/Arts/Visual_Arts/Computer_Generated/ASCII_Art/ - a listing of sites making "art" with computer text and graphics
http://www.globalgourmet.com/ - a culinary guide for the armchair traveller

Contact us:

Parish Patience Immigration
Level 1, State Street Centre
338 Pitt Street
SYDNEY NSW 2000
AUSTRALIA

Tel: +612 9286 8700
Fax: +612 9283 3323
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Disclaimer

The contents of this newsletter are not intended to be legal advice. Parish Patience solicitors accepts no responsibility for any action taken in reliance on anything contained in the newsletter. Individuals should seek advice about their own circumstances only from a registered migration agent.