DIMA agreed that "documenting the reasons for not waiving the health requirement tends to create a perception of bias". Despite this advice, there were further delays in DIMA referring a request for a waiver of the health requirement to the Minister and as a. In that context, I note that DIMA has initiated an internal review of the legislation relating to the foreign component of the Humanitarian Programme.
Most, if not all, of the personal information relating to Mr. Kian and his family contained in my report has been extensively covered in the media and in the public domain. In the circumstances, I believe it is in the public interest to publish my report in full. Indeed, I believe that aspects of the reply strengthen the basis for the views I have formed about the delay and apparent bias of DIMA in dealing with Ms Yasmin's applications.
In my view, it is not reasonable to require that the claims of separated family members be compared or tested with the claims of people considered for humanitarian entry on the high seas. These suspicions (which may or may not have been well founded) appear to have been intended to prejudice the consideration of separated family applications.
B ACKGROUND
In my opinion, the likely cost to the Australian community of health care or community services is $430,745 (in special education, sheltered employment and residential care). The post wrote to Mrs. Yasmin on December 3, 1998 to report that Anum did not meet health requirements. The decision maker indicated that he wished to consider whether there was a basis for waiving the health criterion and offered Ms Yasmin the opportunity to comment on whether the child would create unnecessary costs for the Australian community or unnecessarily restrict access for Australians would harm health care.
In her reply, received by post on 8 January 1999, Ms Yasmin advised that Anum's epilepsy was under control with the use of medication and that she had learned to provide physiotherapy to her daughter. Ms Yasmin also said that her sister-in-law, an Australian citizen, worked with young disabled people and would be able to provide assistance and respite care.
R EGULATORY FRAMEWORK
- M IGRATION R EGULATIONS
- C RITERION 4007
- P OLICY GUIDELINES
- D ECISION - MAKING PROCESS
- A PPEARANCE OF BIAS
- DIMA’ S FIRST RESPONSE TO O MBUDSMAN
- S ECOND LETTER TO DIMA
- S ECOND RESPONSE BY DIMA
- D RAFT REPORT UNDER SECTION 15 OF THE O MBUDSMAN A CT 1976
- Preliminary opinions
- Ms Yasmin’s case
- Policy issues
- Appearance of bias
- Draft recommendations
- DIMA’ S RESPONSE TO THE DRAFT REPORT
The migration regulations allow a waiver of the need to meet the health requirement in some circumstances. In this case, the decision maker was satisfied that the level of care required by the applicant would result in a significant cost to the Australian community in terms of health care and community services. It was stated to DIMA that the policy guidelines for waiving the health requirement did not appear to have been properly taken into account.
In any case, it was not clear how the decision not to waive the health criterion was made in this case. There does not appear to be any attempt on behalf of the decision maker to address or discuss the waiver criteria. DIMA accepted that the reference to humanitarian claims in the case notes was misleading, as Ms Yasmin was not required to meet the 'humanitarian criteria' for the grant of the Subclass 202 visa.
After receiving and considering the draft report, DIMA agreed that the documentation of the reasons for not deviating from the health requirement was suitable to create a perception of bias. In the meantime, the Minister will be sent a request to consider waiving the health requirement for the child.
SECOND OMBUDSMAN INVESTIGATION
R EQUEST FOR DOCUMENTS
DIMA ’ S UNDERTAKING TO THE OMBUDSMAN
P ROCESSING OF THE FINAL APPLICATION
Although my office was subsequently advised that the post office was too busy to forward the application to Canberra immediately upon receipt, DIMA file OPF2000/10056 shows that it took four weeks for Islamabad to identify that the application was in fact submitted on 15 September 2000. the post was asked to look at the original documents related to the application and arrange for medical and police checks. DIMA records show that the case officer made arrangements to send the application file back to Islamabad on November 8, 2000.
However, it appears that the file was somehow delayed again in transit and was not found in Islamabad until some three or four weeks later. On December 12, 2000, Islamabad Postal Service sent a letter asking Ms. Yasmin to conduct medical checks and give permission for the police. There seems to be no reason why the medical and police checks couldn't have been requested sooner given the history of this case.
C OST OF THE HEALTH CHECKS
A SSESSMENT OF HEALTH CARE COSTS
T HE HEALTH WAIVER SUBMISSION
In my opinion, the above comments suggest a lingering bias against the family and a lack of willingness to judge the health exemption against relevant policy-based criteria. The officer further suggested amending the draft health waiver to point out that Anum's family's offer to continue caring for her "is not plausible in the Australian context and cannot be enforced" . The final document handed over to the Minister on 10 April 2001 includes words to that effect and adds that "it is long-standing policy that no significant weight should be given to such offers".
This approach is in my view inconsistent with the PAM3 policy guidelines which specifically identify "the willingness and ability of a sponsor, family member or other person or body to provide care and support without public cost" as a relevant factor to be considered . The submission of the health waiver was further delayed when DIMA decided on 29 March 2001 to obtain further information from Mr Kiane on factors which, in DIMA's opinion, might mitigate the cost to the community of approving his family's application.
M R K IANE ’ S STATUS AS A REFUGEE
The existence of the health exemption provision for immediate family members of Protection Visa (PV) holders recognizes the strong humanitarian objectives involved in this visa class. In my office's experience, this appears to be a valid argument which also goes to the fundamental question of the purpose of Australia's offshore. Among the range of factors the government takes into account when determining the size of the humanitarian.
If an applicant does not meet the health criterion, it may be considered to waive the health criterion. Decisions on whether or not to proceed with the interview are made initially based on the claims made in the application. Ms Yasmin's application was considered under the 'spit family' provisions of the offshore component of the Australian humanitarian programme.
Preparation of the submission to the minister regarding the health waiver began as soon as information became available about the projected costs. This could not be overlooked and goes to the question of credibility of the applicant and the proposer. All these issues and other information were relevant to the central issue of the family's humanitarian need to be in Australia and "factors preventing the sponsor from joining the applicant in the applicant's own country".
Mr Kiane applied unsuccessfully to immigrate to Australia under subclass 302 (emergency (permanent visa applicant)) of the Migration Program. As a permanent resident, Mr. Kiane was eligible to sponsor his family under the Migration family program. In November 1996 (before the introduction of the Humanitarian Programme's "separated family" provisions), Mr. Kiane and three dependents.
The decision maker refused to waive the health criterion, given the estimated cost to the community of $430,750 in special education, sheltered employment and residential care. He was not satisfied that the policy guidelines had been properly taken into account and called for the exercise of the health exemption to be reconsidered. On the same day, an e-mail was sent to the post office asking about submitting the application.
Post answered on January 2, 2001 advising Ms. Yasmin that the Department would cover the cost of the medication. The relevant Commonwealth Medical Officer (MOC) operates from the Health Assessment Service (HAS) which is in the Department in Sydney.
