Laws8650 Migration Law: Statement Of Assessment Answers
Questions:
Q1.
Halim Sayed is a recently registered migration agent. His first client, Mr Ning Xiao, is a citizen of China and is now a permanent resident of Australia. Ning is single. Halim recently assisted Chan with the completion of a Class EA Business Skills (Business Talent) subclass 132 visa.
Halim initially requested his client, Ning, to deposit $9,900 for professional fees inclusive of GST, plus disbursements, for a Class EA Business Skills (Business Talent) subclass 132 visa. This application and the trip to Hong Kong to attend the interview took Halim approximately 70 hours.
As part of Halim’s services he completed the application in accordance with Ning’s instructions, prepared a submission to support the application, researched policy and the law, reviewed financial statements prepared by the auditors and liaised with both the client and the Australian Embassy in Hong Kong. Halim also attended an interview with the client at the Australian Embassy in Hong Kong.
Halim supplied Ning with an agreement for fees and services.
Task:
a. Prepare a statement of services on behalf of Halim.
b. Briefly state what are Halim’s ethical obligations as a migration agent in terms of the Code of Conduct prior to receiving his professional fees and disbursements?
Q2.Scenario
You are a registered migration agent. Dimitri Alexis comes to see you in your office. He is an Australian permanent resident. He explains to you that his wife, Heleni, is living in Greece with their daughter, Celesta (DOB: 15/04/2013). Heleni has applied for a subclass 309 Partner (Provisional) visa with Dimitri as her sponsor. Dimitri tells you that their daughter was born with severe hearing loss in both ears. Dimitri shows you a letter that Heleni has received from the DIBP. You read the DIBP letter which contains the following information:
“From the MOC opinion it is doubtful that the second named visa applicant will meet the PIC 4007(1)(c)(ii)(A) requirement as she has permanent severe bilateral hearing loss. The MOC finds that she may be a candidate for cochlear implantation. The MOC considers that a hypothetical person with this condition, at the same severity as the applicant, would be likely to require community services, during the applicant’s proposed stay in Australia. The MOC considers that the provision of community services to the hypothetical person in the circumstances defined would be likely to result in a significant cost to the Australian community in the area of community services. The MOC lists the cost to be between AUD 90,000 to 100,000. Under my authority as a delegate of the Minister, I now seek further information from you in regards to your daughter’s health. A health waiver is available under PIC 4007. Any information you wish to present in relation to the application of PIC 4007 should be forwarded to this office in writing by 4 June 2017.”
Dimitri tells you that his daughter has had regular hearing aids fitted and is progressing well. His wife is practising daily speech therapy exercises with her daughter and she is attending a mainstream kindergarten, without special assistance. Dimitri is a qualified dentist but has not been able to find work in this field. He is continuing to look for work in this area but in the meantime, he is working long hours, seven days a week, in a meat processing plant in a town called Northam, which is around two hours’ drive from Perth. Dimitri sends as much money to his wife and daughter as he can afford (approximately $8000 every 4 months). His wife is an accomplished cook specialising in Greek regional food. Before she had her daughter she ran a small but very popular restaurant in a tourist town outside of Athens, and she has written a cookbook about Greek family cooking. She is now facing discrimination in her home village because her husband has not lived with her and their daughter since their marriage.
Heleni and Dimitri married in March 2012. Dimitri migrated to Australia in June 2012, having been granted his visa prior to his marriage, and before he knew that his wife was pregnant with Celesta. His daughter was born after he arrived in Australia. Because of the Greek financial crisis, the plan was that Dimitri would precede his family here and, when he was settled and had found a job, he would act as sponsor for Heleni’s and Celesta’s subclass 309 visa application. The visa application was lodged in June 2014.
Dimitri dearly wants his wife and daughter to join him in Australia. Once he is able to stop sending money overseas then they can buy a house here and begin contributing to Australia as a family unit.
Dimitri tells you that he rang and spoke to the DIBP officer about the health of his daughter. However the DIBP officer told him that she required the information in writing. Dimitri is very worried about what to write and so he has come to you for advice.
Task:
Prepare a formal written submission on behalf of Dimitri to the Department of Immigration and Border Protection seeking a waiver of the health requirement for a subclass 309 visa. Refer to relevant legislation and policy in your submissions and make references in your submissions to all relevant supporting documents you would supply with the submission. You can assume for the purpose of the submissions that the marriage is genuine.
Answers:
Answer 1 (a)
Statement of service: statement of service is a document which is provided by service provider to its clients, and this document contains the brief details of services provided to client, and amount charged by service provider for each service. It must be noted that this statement consist the detail of each service given by service provider to the client, and amount related to service is calculated in the Australian dollar.
In the present case, recently Halim Sayed is registered as Migration Agent. Mr. Ning Xiao is his first client and holds the citizenship of China and now he becomes the permanent resident of Australia. Ning is single, and Halim assisted Chan for applying Class EA Business Skills (Business Talent) subclass 132 visa.
However, at initial stage Halim requested Ning to deposit $9,900 as professional fees which also includes GST and other disbursements for the purpose of applying for Class EA Business Skills (Business Talent) subclass 132 visa. Halim took almost 70 hours to complete his trip to Hong Kong to attend the interview.
Halim provided various services which include completion of visa application as per the instructions provided by Nings, he also prepare submission to support the application, making research related to policy and the law, reviewed the financial statements, and state connection with both client as well as Australian Embassy in Hong Kong. Interview of client was attended by Halim in Australian Embassy in Hong Kong. Later Halim supplied Ning with an agreement for fees and services. Following are the statement of service provided by Halim to Ning:
|
Services provided |
Amount charged |
|
EA132 Business Talent VAC1 |
$ 6990 (inclusive all amount) |
|
Professional fees (all services provided by service provider are included in this amount) |
$ 3000 |
|
Total |
$ 9990 |
(b)
Part 2 of Migration Agents Regulations 1998 defines the standards of professional conduct, and these conducts as per code of conduct are stated below:
- A registered migration agent must act as per the law, and ensures legitimate interest of his client, and it is also the obligation of agent that they deal his or her client competently, diligently and fairly.
- If Migration agent operating in any other country then they must fulfill the obligation of Code of Australia, even if law of such country prevents the agent to comply with the code.
- It is necessary that if client asks about the success of application from registered migration agent then migration agent must give his advice in written form within reasonable time period, and he can also give advice orally but to the extent that oral advice similarly considered as oral advice.
- It is also the duty of agent that he must not hold unsubstantiated or unjustified prospects of success while advising his or her clients either in oral form or in written on applications submitted under Migration Act or Migration Regulations.
- It is the duty of migration agent that he act as per the instructions provided by client.
Answer 2
To: Department of Immigration and Border Protection
From: Dimitri
Date: 12th May 2017
Re: seeking a waiver of the health requirement for a subclass 309 visa.
DIAC is responsible to administer the health requirements of visa applicants, and as per this migration Health Requirement it mainly aims the protection of public health, and it also determine the expenditure related to public health in Australia.
Section 65 of the Migration Act 1958 is related with the decision making process of health requirement. In other words, this section deals with the decision of granting or refusing the visa of the person. According to this section after considering valid visa application, if the minister is satisfied that health requirements are met by the visa applicant, and he or she also satisfied that all other requirements stated by this Act or regulations.
It must be noted that under this section grant of the visa is not prevented by Section 40 in which circumstances related to visa grant is stated, section 500A which states the refusal and cancellation of temporary safe haven visas, Section 501 which state the special power for refusing or cancel the visa, and any other provision of this Act or any other law of commonwealth.
However, any charge related to visa application is payable in context of application has been paid in case visa is granted, and if minister is not satisfied then visa application is refused.
Waiver of health requirement is central topic of this letter, and this requirement is available in some particular visa classes only, and it also allowed the department to consider the factors which are not related to health while assessing the visa applications.
As per the law it is necessary that visa applicant and their children’s who are applying for visa must fulfill the health requirements stated by Act, and in general practice members of the family who are not applying for the visa also need to fulfill these health practice. Therefore, for the purpose of deciding it is necessary that applicant go through health checks.
It is necessary that visa applicant go through the health examinations for the processing of visa application, and these health examinations are changed from the 20 November 2015, and it is necessary that applicant must ensure some additional provisions.
As stated above, health waiver is available in some specific classes of visa, in which department is satisfied that granting of the visa would not result in undue cost or prejudice to access. However these waivers are known as PIC 4007 health waiver. Health waiver is available only in situation when medical officer of the Commonwealth stated that visa applicant is not meeting the health requirements, and if officer is satisfied that granting of visa would not result in undue cost and it does not put any extra pressure on health care and community services because there is already short supply in Australia. This is known as prejudice to access.
As stated above, health requirements in Australia are stated under three key PICs which are define in Schedule 4 of the Migration Regulations 1994. These PICs clearly stated the criteria for assessment of application in context of the Health Requirement, and they are applied in all visa applications. All three PICs are stated below:
- PIC 4005 applied on number of visas, and they also sets out the criteria for standard Health Requirements on the basis of which all visa applications are examined, and it also includes meeting of significant cost and requirements related to prejudice to access.
- PIC 4006A applied to temporary long stay skilled business visas, and it also provides access to the discretion of minister for providing the waiver in case sponsoring employer undertakes to indemnify identified health related costs.
- PIC applied to very few family streams, humanitarian and skilled visas, and it also provides access to minister’s discretion for considering the waiver of health requirements. This PIC allowed the decision maker to consider some other factors also such as situations related to compelling and compassionate of the case and financial and other related cost.
However, it must be noted for the purpose of these PICs, information is sent by DIAC to the committee, and as per them health requirements are applicable if PIC 4006A or PIC 4007 are attached to the relevant visa subclass. At current level these PICs are applied on limiter number of visas in case of humanitarian and family streams. This case is also there in past as well, as in old times waiver of health requirement is allowed in cases of humanitarian, Australian citizens family members or permanent residents are involved.
This traditional approach generally means that in case of majority of permanent visa applicants which also includes permanent skilled visa applicants, waiver of health requirements are not available. In case PIC 4006A or PIC 4007 is attached to the visa then waiver of health requirement requires some extra considerations from Department decision-maker.
Under PIC 4007, opportunity is provided to visa applicant for providing the additional medical reports and other documents related to economic, social or other circumstances of the applicant for the purpose of offsetting the costs identified by the MOC. However, it must be noted that consideration presented by PIC 4006A clearly depends on the sponsoring employer willingness for the purpose of offsetting the costs identified by the MOC.
As per the advice of DIAC, in maximum cases department granted 4006A waivers, and PIC 4007 is not granted in case if cost of health requirements stated by MOC significantly exceed the threshold related to significant cost and may prejudice to access results in short supply of services to other Australian citizens. Following are some other factors stated below, which are considered by DIAC for the purpose of granting health waiver:
- In case occupation nominated by applicant is in demand or of severe shortage in the Australia or in wide particular jurisdiction or geographical area in Australia in which they want to reside.
- Family members of applicant are already settled or want to settle in a remote, rural or regional area.
- Whether care obligations of family members constraint the earning capacity of applicant or their ability to develop their skills related to their trade or profession.
- Department analysis the skills and qualifications of the visa applicant as well their family members.
- It also analyzes the extent up to which visa applicant and their family members can mitigate the cost identified and stated by MOC.
- Difficulties faced by family members in case they return to their home country.
- Department analyze the education needs, occupational needs, and other prospects for the visa applicant in Australia.
- Department also analyze whether there is any non-migrating family member who does not pass the health requirements, and if anyone is there then it is not possible for them to ever migrate to Australia.
- Department not only consider the medical requirements of the applicant but they also consider the lifestyle and occupation of the applicant.
In this case, Celesta is suffering from hearing problem, and she wears regular hearing aids, and she is also progressing. She is attending the kindergarten without any special assistance, and also practicing daily speech with her mother. She is not causing any burden on health care and community services. Therefore, department can grant them waiver of health requirement as per PIC 4007.
However, couple can contribute as family in the Australian economy, because Dimitri is a qualified dentist and his wife is an accomplished cook specializing in Greek regional food. Therefore, department can allowed the waiver after analyzing these skills and qualifications o members.
Department can grant waiver after considering the family condition of Dimitri, as he married in March 2012, and moved to Australia in June 2012, and because of this his wife is facing discrimination in their home village as his husband leaves him as soon as they get married. As per the Dimitri plans, he wants to join his wife and daughter in Australia, and once they are able to stop sending money overseas then they can buy a house here and begin contributing to Australia as a family unit.
Therefore, after considering all the facts it is clear that department can allowed the partner visa of class 309 to Dimitri’s wife.
Thank you
References
DIBP, ‘Pricing Estimator’, < https://www.border.gov.au/Trav/Visa/Visa-1>. Accessed on 12th May 2017.
Migration Agents Regulations 1998- part 2.
MIA, ‘MIA Members’ Code of Ethics and Practice’, < https://www.mia.org.au/documents/item/484>. Accessed on 12th May 2017.
DIBP, ‘Health requirement’, < https://www.border.gov.au/Visas/supporting/Pages/health-requirement.aspx>. Accessed on 12th May 2017.
DIBP, ‘Health Examinations’, https://www.border.gov.au/Trav/Visa/Heal/meeting-the-health-requirement. Accessed on 12th May 2017.
DIBP, ‘Health waivers’, < https://www.border.gov.au/Trav/Visa/Heal/meeting-the-health-requirement/health-waivers>. Accessed on 12th May 2017.
Imelda Argel, ‘Who is entitled to a “Health Waiver’, < https://www.iargel.com.au/Portals/Iargel/Who%20is%20entitled%20to%20a%20Health%20Waiver%20IAA%20201011.pdf>. Accessed on 12th May 2017.
Nilesh nandan, ‘Health Requirement & Health Waiver For Australian Visas’, < https://myvisa.com.au/health-requirement-health-waivers/>. Accessed on 12th May 2017.
APH, ‘The Migration Health Requirement’, < file:///C:/Users/Manisha%20Bhatia_Absas/Downloads/http---www.aphref.aph.gov.au-house-committee-mig-disability-report-chapter3%20(1).pdf>. Accessed on 12th May 2017.
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