15 September 2017

The Hon Peter Dutton MP

Minister for Immigration and Border Protection

c/- Department of Immigration and Border Protection

PO Box 25

Belconnen ACT 2616

By online submission

Dear Minister

Submission to the Department of Immigration and Border Protection in relation to the 2017 Policy Consultation Paper - Visa Simplification: Transforming Australia’s Visa System

1. Estrin Saul Lawyers welcomes the opportunity to provide a submission to the Department of

Immigration and Border Protection in relation to the 2017 Policy Consultation Paper - Visa Simplification: Transforming Australia’s Visa System.

2. Should the Department of Immigration and Border Protection require any further information in

relation to the matters discussed within this submission, please contact Dr Jan Gothard on (08) 9485 0650 or by email: jan@estrinsaul.com.au.

Yours faithfully,

Estrin Saul Lawyers

Mr Daniel Estrin

Partner | Lawyer MARN: 1276986

Mr Reuben Saul

Partner | Lawyer MARN: 1069241

Dr Jan Gothard

Health and Disability Specialist MARN: 1569102

Submission

Policy Consultation Paper - Visa Simplification: Transforming Australia’s Visa System

15 September 2017

1

Contents

1. Executive Summary……………………………………………………………………….……...2

a. Student Visas and the health requirement……………………………………………...3

2. The health requirement………………………………………………………………………….4

3. Requirements and conditions of the Student Visa…………………………………………….5

a. Education costs of the primary applicant……………………………………………….6

b. Education costs of the secondary applicant…………………………………………….6

c. A secondary applicant with a disability………………………………………………….7

4. Health costs……………………………………………………………………………………….8

a. Eligibility for Medicare………………………………………………………………….....8

b. Costs for Commonwealth disability services……………………………………………8

c. Costs for state / territory disability services…………………………………………….9

d. National Disability Insurance Scheme (NDIS)…………………………………………..9

5. Legislative and policy considerations………………………………………………………….9

a. Relevant legislation……………………………………………………………………...10

b. Enabling Australia report………………………………………………………………..11

c. Productivity Commission Report into Migrant Intake………………………………..11

d. Actual use of services………………………………………………………..………..…12

6. The 4007 waiver……………………………………………………………………..……….…13

7. Recommendations……………………………………………………………………………..13

8. Postscript…………………………………………………………………………….....……….14

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1. Executive Summary

3. This submission is framed by the fourth key area for consideration set out in the Policy

Consultation Paper - Visa Simplification: Transforming Australia’s Visa System (Policy Paper)

relating to ‘ensuring that our visa system supports Australia as a competitive and attractive destination for temporary and longer-term entrants.’

4. This submission addresses the health requirement set out in Schedule 4 to the Migration

Regulations 1994 (Cth) (the Regulations), with specific reference to Public Interest Criteria (PIC) 4005 and 4007 as they relate to applicants for the subclass 500 (Student) visa (Student Visa).

5. It argues that the health requirement for students, as set out in PICs 4005 and 4007:

a. unnecessarily prevents the entry into Australia of students who have a legitimate purpose

for visiting Australia;

b. is inefficient in facilitating the entry of genuine students; c. is counter to the intention of the Australian government in supporting a competitive and

attractive destination for temporary student entrants;

d. is at odds with Australia’s national economic and social interests; and e. contradicts the depiction of Australia in the Policy Paper as an ‘an open and welcoming

country.

6. This submission accepts the view set out in the Policy Paper that the visa system needs

‘modernising’, and to be ‘more responsive to Australia’s economic, social and security interests’; that ‘the system needs to be efficient in facilitating the arrival of people who have a legitimate

purpose for coming to Australia, be it in tourism, study or as an entrant under the permanent migration scheme’; that ‘tourism, temporary migration and permanent migration benefit Australia

economically and socially’; and that ‘Australia’s visa system should be efficient in facilitating the

entry of genuine travellers’.1

7. This submission also draws attention to the objectives and principles of the Student Visa Program (SVP). The Executive Summary of the Australian government report, Future Directions for

Streamlined Visa Processing, in recommending the new visa application process for Student Visas introduced from July 2016, noted that:

International education is one of Australia’s five pillars of economic growth. Total export income

generated by all international education activities was $16.3 billion for 2013‒14. The Australian

Government recognises the strong economic and cultural contribution of our international education

sector and is committed to supporting its growth by facilitating the visa process for genuine overseas

students. 2

1 Department of Immigration and Border Protection, Policy Consultation Paper - Visa Simplification: Transforming Australia’s Visa

System, <https://www.border.gov.au/Trav/visa-reform/policy-consultation-paper>. 2 Department of Immigration and Border Protection, Future directions for streamlined visa processing Report and

recommendations (June 2015), 3 <https://www.border.gov.au/ReportsandPublications/Documents/reviews-and-

inquiries/future-directions.pdf>.

3

8. As a provider of international education, it is the responsibility of the Australian government to

facilitate the entry into Australia and the progress of students who have done everything to meet

the requirements of their visa. To fail in this responsibility is at odds with the SVP principle of

promoting international good will.

9. Estrin Saul Lawyers is concerned that the current system of assessing Student Visa applicants

against the health requirement prevents the entry into Australia of students and their family

members who are otherwise fully qualified to study in Australia but may have a health or disability

issue, even though this issue cannot impact adversely on Australia’s community and health

services.

10. This submission provides suggestions for bringing the health requirement for Student Visa

applicants in line with the overarching objectives set out in the Policy Paper and with the

recommendations of the new streamlined visa application process for Student Visas established in July 2016.

Student Visas and the health requirement

11. The Student Visa is a temporary visa. Other than the Foreign Affairs and Defence streams (which are

subject to PIC 4007), all streams within subclass 500 visa are subject to PIC 4005. Therefore, primary and secondary Student Visa applicants who have a disability or health issue risk failing the health

requirement on the basis of possible costs in the area of health, state disability services or special

education.

12. Estrin Saul Lawyers argues there is no logical or cost-based reason for an applicant for a Student Visa to fail to meet the health requirement on the basis of costs for community services. Either:

a. those services cannot be provided to a Student Visa holder (since they are not available

to temporary residents); or b. the provision of those services cannot be a cost to the community since the Student Visa

holder is required to cover all health and educations costs for themselves (and their

dependents).

13. There is clear evidence of legislative intent relating to the unfairness of costing temporary visa

applicants for community services which they cannot access as temporary residents, or which

cannot become a cost to the community because of the particular conditions of some temporary

visas; but this has not been applied to Student Visa applicants in the areas of health, education or state disability support services.

14. When assessing a Student Visa applicant against the health requirements set out in PIC 4005 and

4007, the applicant should be exempt from all costings related to health, education and disability

support services, since the applicant and their dependents are not entitled to access these services at the community’s expense. This could be very simply accomplished through use of a legislative

instrument.

15. If this measure were introduced, no applicant for a Student Visa should fail to meet the

requirements of PIC 4005(c)(ii) or PIC 4007(c)(ii) relating to the likely cost to the community of the

provision of services to a visa applicant.

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2. The health requirement

Migrants to Australia have to meet Health Requirements in order to be eligible for certain visa

classes of entry. These requirements aim to minimise the burden of planned migration on the

health care system, to prevent the spread of contagious diseases, and to protect Australia’s record

of good health.3

Enabling Australia: Inquiry into the Migration Treatment of Disability, June 2010

16. Both primary and secondary applicants for a Student Visa are required to meet either PIC 4005 or

4007 (Foreign Affairs and Defence applicant stream) set out at Schedule 4 to the Migration

Regulations 1994 (Cth) (the Regulations), which relates to both public health and to potential costs to the Australian community.

17. Clauses 4005 and 4007 state in part that:

(1) The applicant:

(a) is free from tuberculosis; and

(b) is free from a disease or condition that is, or may result in the applicant being, a threat to

public health in Australia or a danger to the Australian community; and

(c) is free from a disease or condition in relation to which:

(i) a person who has it would be likely to:

(A) require health care or community services; or

(B) meet the medical criteria for the provision of a community service;… and

(ii) the provision of the health care or community services would be likely to:

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

community services; or

(B) prejudice the access of an Australian citizen or permanent resident to health care or

community services;

regardless of whether the health care or community services will actually be used in

connection with the applicant. [emphasis added]

18. Sub-clause 4007(2) allows for the Minister to waive the requirements of para 4007(1)(c) if:

(a) the applicant satisfies all other criteria for the grant of the visa applied for; and

(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:

(i) undue cost to the Australian community; or

(ii) undue prejudice to the access to health care or community services of an Australian citizen or

permanent resident.

19. Under reg 1.03, ‘community services’ include the provision of an Australian social security benefit,

allowance or pension. Education services are not included under ‘community services’ as defined

3 Joint Standing Committee on Migration, Parliament of Australia, Inquiry into the Migration Treatment of Disability (21 June

2010) [2.6].

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under reg 1.03 and are only costed on the basis of Departmental policy as set out in the Procedures

Advice Manual (Policy), but are generally included in assessing a visa applicant’s likelihood of

meeting the health requirement.

20. Public health aspects set out at paras 4005(1)(a), 4005(1)(b), 4007(1)(a) and 4007(1)(b) are not the

focus of this discussion. The focus here is on costs to the community as set out at paras 4005(1)(c)(i),

4005(1)(c)(ii), 4007(1)(c)(i) and 4007 (1)(c)(ii) (hereafter referred to collectively as Provision of

Health Care Criteria).

21. As set out in Provision of Health Care Criteria, the costs of an applicant for a visa should be assessed by the Medical Officer of the Commonwealth (MOC) on the basis of whether the provision

of community and health services would be likely to result in a significant cost – ‘regardless of

whether the health care or community services will actually be used in connection with the

applicant’. ‘Significant cost’ is set out in Policy as AUD 40,000 over the relevant period prescribed under the Regulations and Policy.

22. In practice, the MOC does not assess whether or not the provision of services would be likely to

result in a cost to the community. Rather, the MOC assesses the costs of an applicant on the basis

of the costs of a hypothetical person with a similar condition at the same level of severity who would use those services. This ‘hypothetical person’ test is derived from the Federal Court decision

in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626

(Robinson).

23. Under reg 2.25A(3) when assessing whether or not an applicant meets the health requirement, ‘[t]he Minister is to take the opinion of the Medical Officer of the Commonwealth… to be correct for

the purposes of deciding whether a person meets a requirement or satisfies a criterion.’

3. Student visa requirements and conditions

24. The requirements for the grant of the Student Visa are set out in Schedule 2 to the Regulations and

include:

a. having access to sufficient funds to meet all family members’ costs and expenses during

the intended stay in Australia (cl 500.214); and b. evidence of adequate health insurance (cl 500.215).

25. Conditions attached to the grant of the Student Visa are listed at cl 500.6. Those relevant to this

discussion of the health requirement for both primary and secondary applicants are set out at

Schedule 8 to the Regulations and include:

a. applicants maintaining adequate health insurance while in Australia (condition 8501);

b. applicants continuing to satisfy the requirements for the grant of the visa, including, continuing to have sufficient financial capacity to support all family members’ costs and

expenses during their intended stay in Australia (condition 8516); and

6

c. primary applicants maintaining adequate schooling arrangements for school-age

dependents who are in Australia for more than three months (condition 8517).

26. Failure to meet these conditions could lead to cancellation of the visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

Education costs of the primary applicant

27. By definition, a primary applicant for a Student Visa is applying to study in Australia. The range of costs for education for international students are set out in the Australia Government’s Study in

Australia website,4 which notes that the cost of studying is dependent on the institution and level of

study, and that for an international student, tuition fees are payable before commencement.

28. Costs depend on the level of the different type of qualification being attempted. They range from

AUD 7,800 per annum for a school student to over AUD 37,000 or more for a doctoral, medical or

veterinary student. Prospective students are advised to contact their preferred institution directly

to ascertain costs.

29. The primary applicant is directly responsible for covering the costs of their educational expenses,

which are a matter between the student and the education provider. The provision of this service – education – to the primary applicant therefore cannot become a cost to the Australian community.

30. Consequently, the education costs of the primary applicant are not costed by the MOC and are not

taken into account when assessing costs under the health requirement.

Education costs of the secondary applicant

31. Condition 8517 prescribes that a primary applicant for the Student Visa must maintain adequate arrangements for school-age dependants (i.e. secondary applicants) joining the primary applicant

in Australia for more than three months.

32. In Australia, primary and secondary school education is governed by state legislation and similarly,

the decision to charge fees for education for school students dependent on a primary Student Visa

applicant is made by the state or territory government. The different fees charged by each state or territory for government school education are also set out in the Australia Government’s Study in

Australia website.5

33. The primary applicant is directly responsible for covering the educational expenses of all secondary

applicants of school age and the level of costs is, again, a matter between the primary student applicant and the education provider.

34. However, in order to evidence financial capacity to meet schooling costs of school-age dependants,

Student Visa applicants must demonstrate they have access to the AUD 8,000 per year (as

prescribed by legislative instrument IMMI 16/018) unless school costs are exempted. Failure to

4 Study in Australia, Education costs in Australia <https://www.studyinaustralia.gov.au/english/australian-education/education-costs>. 5 Study in Australia, Education costs in Australia <https://www.studyinaustralia.gov.au/english/australian-education/education-

costs>.

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maintain adequate education arrangements for school-age dependants, or failure to maintain

financial capacity to provide that education, would result in a breach of visa condition 8516.

35. In some states, fees for state primary and secondary education are waived by state authorities for the dependants of the holders of Student Visas. Thus, the provision of this service (i.e. education),

to the secondary applicant, depending on the requirements of the particular state government

education authority, could potentially be a cost to the community in a particular state. However,

these potential education costs are not taken into consideration by the MOC when assessing

prospective community costs for a secondary applicant. These are costs which state governments

have elected to bear and fall outside the purview of the MOC.

36. Consequently, the education costs of a secondary applicant who has no disability are not costed

by the MOC and are not taken into account when assessing costs under the health requirement.

A secondary applicant with a disability

37. Currently, the situation regarding a school-age dependent applicant who has a disability (and may therefore require additional support in a school) is treated differently when it comes to meeting

the health requirement.

38. Typically, a secondary applicant for a Student Visa who has a disability will be costed by the MOC

for special education services regardless of the fact that the primary Student Visa holder is directly responsible for the provision of those services in negotiation with the education provider, namely

the relevant state or territory government’s education department.

39. In some states and territories, international students are required to cover costs associated with special education; in other cases, they are not. This is a matter for the provider and mirrors the

situation of the cost for ‘regular’ state schooling, with each state and territory establishing its own

protocols for charging for education services to international students.

40. In some states and territories, international students are also required to cover additional costs

associated with the need for other services such as English-language support (for example, in Western Australia).

41. There is no qualitative difference between:

a. a non-disabled secondary applicant attending primary or secondary school in a state /

territory setting;

b. a secondary applicant for a student visa who has a disability attending primary or

secondary school in a state / territory setting; and c. a secondary applicant for a student visa who needs English-language support attending

primary or secondary school in a state / territory setting.

42. Each is required by law to attend school; and in each case, the primary visa applicant is required to

make adequate arrangements to maintain the secondary applicant’s schooling, including covering

any costs set by the state / territory education provider.

8

43. There is no logical, rational or economic argument for assessing the costs of special education for a

school-age dependant with a disability for the purposes of meeting the health requirement, if the

education costs for any other school-age dependents are not similarly costed.

44. Equally, there is no logical, rational or economic argument for assessing the costs of special

education for a student with a disability if the additional costs for a student requiring English

language support are not similar costed.

45. In all cases, costs may accrue to the community if the state or territory education provider so

chooses – regardless of whether or not special education is involved. Further, these costs are attributed to the Student Visa applicant regardless of whether or not the state education provider

choses to absorb them.

46. However, only in the case of an applicant with a disability are education costs reflected in the assessment of the health requirement.

4. Health costs

Visa conditions

47. Condition 8501 requires both primary and secondary Student Visa applicants to maintain adequate

arrangements for health insurance during their stay in Australia.

Eligibility for Medicare

48. The Medicare eligibility criteria is governed by the Health Insurance Act 1973 (Cth). The relevant

provisions of this Act note that eligibility for Medicare is extended to ‘a person … lawfully present in

Australia and whose continued presence in Australia is not subject to any limitation as to time

imposed by law.’6 On this basis, the holder of any temporary visa restricted by time frame (unless

they have applied for a permanent visa) is not entitled to access Medicare. Holders of Student Visas,

whose period of stay in Australia is governed by the duration of their visa and has an end date, are therefore ineligible to access Medicare.

49. Similarly, since access to benefits under the Pharmaceutical Benefits Scheme (PBS) is restricted to

those who are entitled to Medicare, holders of a Student Visa are not entitled to PBS benefits.

50. Any health needs of the Student Visa holder therefore cannot become a cost to the Australian

community since the Student Visa holder is not eligible for community health care or ancillary

health benefits; and is required to meet all medical and allied health expenses personally or through their own health insurance.

6 Health Insurance Act 1973 (Cth) s 3(d).

9

Costs for Commonwealth disability services

51. For many temporary visa applicants (including applicants for a Student Visa), costs for some Commonwealth disability services have been excluded from consideration by the MOC (by

Legislative Instrument IMMI 11/073) and are therefore not costed by the MOC when assessing an

applicant’s capacity to meet the health requirement. This is discussed further below.

Costs for state / territory disability services

52. State and territory disability services for most, if not all, states and territories are not available to

temporary residents under state or territory government legislation. Eligibility for services is

generally restricted to Australian citizens, permanent residents and eligible New Zealand citizens. 52. Consequently, as these services cannot be provided to the holder of a Student Visa, community

costs for those services cannot eventuate as the result of the grant of a visa.

53. At present however, these services are routinely costed by the MOC against applicants for Student Visas, primary and secondary, who have a disability, since the MOC assesses costs on the basis of

the hypothetical person, not a hypothetical applicant for a Student Visa.

National Disability Insurance Scheme (NDIS)

54. The full rollout of the Commonwealth-funded NDIS will largely replace current state / territory disability services. Under Operation Guidelines 7.2 for the NDIS, eligibility to access or participate in

NDIS is confined to those who are Australian citizens, permanent residents, or protected New Zealand citizens.7 Holders of a temporary visa such as a Student Visa are not eligible; therefore no

costs for these services can accrue to the Australian community on behalf of Student Visa holders.

5. Legislative and policy considerations

55. There is a distinction between use of a community service and the cost of a community service.

56. As noted above, PICs 4005 and 4007 both set out that an applicant for a visa must be free from a

disease or condition which would be likely to require health or community services; and that the

provision of those services would be likely to result in a significant cost.

57. The provision of health care or community services to a Student Visa holder cannot result in a cost

to the Australian community since an applicant for a Student Visa is not eligible for community-

costed services in the areas of health, education or disability support.

58. If services were provided to a Student Visa holder, for example, education or health care, they

would necessarily be provided by private arrangement and the applicant themselves would be

7 National Disability Insurance Agency, Access to the NDIS, <https://www.ndis.gov.au/operational-guideline/access/residence-

requirements>.

10

required to cover the costs under the conditions of their visa. Consequently, it follows that the

provision of a service does not necessarily result in a cost to the community.

Relevant legislation

59. The situation of the temporary visa applicant with respect to access to community services and the

costing of the health requirement has been the focus of consideration from policy makers and

legislators, and the judiciary. Discussion of the ‘hypothetical person’ (derived from the Robinson

case) has attracted particular attention and has direct relevance here.

60. Legislative intent regarding the costing of services for the temporary visa holder is addressed in the

Explanatory Statement to the Migration Legislation Amendment Regulations 2011 (No. 1) (the

Amendment) which clarified what costs should be considered when assessing a temporary visa applicant under the health requirement. The intention of the Explanatory Statement to the

Amendment and the associated legislation was to question the position taken from Policy and seemingly reinforced by Robinson, ‘that the applicant’s individual circumstances must not be taken

into account’.

61. However, as outlined in the Explanatory Statement to the Amendment, that view and its uncritical

application under policy to all visa applicants, is not automatically applicable to temporary visa

applicants:

The Federal Court decision is problematic for temporary visa applicants because in most cases, the

applicants (due to the type of visa they are applying for and would hold if granted) would not have

access to the same range of publicly-funded services available to an Australian resident such as a

permanent visa holder. Hence, despite having a significant medical condition, the costs of this

condition would not be passed on to the Australian community, as the person would not be

eligible for the services and therefore would be expected to pay for any services required either

personally or through a health insurance scheme, for example.

It certainly would not seem fair or reasonable, for example, to refuse to grant a temporary visa to an

applicant with a disability, or an elderly applicant, on the basis of services that they would not be

eligible for when in Australia (due to the type of visa they are applying for and would hold if

granted) [Emphasis added]

62. On the basis of the Amendment, some Commonwealth disability services have been excluded from consideration by the MOC for temporary visa applicants (by legislative instrument IMMI 11/073).

62. However, as has been outlined above, this Amendment has not excluded from consideration by the MOC the other costs for community and health services which cannot be accessed as a community

cost by the Student Visa applicant.

63. To attribute potential costs to an applicant for a Student Visa – costs which cannot be passed on to

the Australian community, ‘due to the type of visa they are applying for and would hold if granted’ -

is at odds with legislative intent and direction.

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Enabling Australia report

64. The position advocated by the Amendment was also set out in the 2011 report Enabling Australia, the report of a Joint Committee inquiry into disability and migration.8 With reference to the

‘hypothetical person’ test, recommendation 8(b) of Enabling Australia stated:

The Committee also recommends that the Australian Government revise the approach which assesses

visa applicants’ possible health care and service needs against ‘the hypothetical person test’. This test

should be revised so that it reflects a tailored assessment of individual circumstances in relation to

likely healthcare and service use.9

65. In its 2012 Response to Enabling Australia, the government noted in supporting recommendation 8

(b) ‘in principle’, that:

In July and November 2011 amendments were made to the Migration Regulations to exclude the costs

of services unlikely to be accessed by temporary visa applicants from their assessment. This signals a

significant and justified departure from the hypothetical person test for this group.10 [Emphasis

added]

66. This is clear recognition at a policy and legislative level that attributing costs for a service which a visa holder uses, but for which a visa holder must be responsible because of the conditions or

circumstances of their visa, cannot be ‘fair or reasonable’; and that excluding the costs of services

‘unlikely to be accessed by temporary visa applicants from their assessment’ is both ‘a significant and justified’ departure from existing practice.

67. Regrettably, the amendments of 2011 did not exclude the full range of health and community

services unable to be freely accessed by Student Visa applicants.

Productivity Commission Report into Migrant Intake

68. The 2016 report of the Productivity Commission into Migrant Intake11 (Productivity Commission

Report) repeatedly pointed out that temporary visa holders do not have the same access to

government–funded services in the areas of health and education and community services as do the holders of permanent residence visa.12

69. Of international students and spending on education in particular, the Productivity Commission

Report noted that international Student Visa holders are actually a direct net fiscal benefit:

8 Joint Standing Committee on Migration, Parliament of Australia, Inquiry into the Migration Treatment of Disability (21 June 2010). 9 Joint Standing Committee on Migration, Parliament of Australia, Inquiry into the Migration Treatment of Disability (21 June

2010). 10 Joint Standing Committee on Migration, Parliament of Australia, Inquiry into the Migration Treatment of Disability (21 June

2010). 11 Productivity Commission, Commonwealth of Australia, Migrant Intake into Australia (13 April 2016). 12 See for example: Productivity Commission, Commonwealth of Australia, Migrant Intake into Australia (13 April 2016) 313; 314;

319 and 323.

12

International students… are required to pay some or all of their public education expenses, although

this differs by jurisdiction. As such, the additional user charges applied to school-age immigrants

could offset some of the government spending on education for this group.13

70. The Productivity Commission Report noted further:

Temporary immigrants provide a net fiscal benefit in the relatively short time that they spend in

Australia. Their limited access to government-funded services means that the size of this benefit

depends on how long they work and how much they earn while in Australia... International students

… provide comparatively smaller, but positive, net fiscal benefits.14 [Emphasis added]

71. Of international students, the report also noted:

The temporary immigrants in student and temporary graduate programs share many of the

attributes identified in permanent immigrants that give rise to positive economic contributions (that

is, being of working age, skilled, and proficient in English). In addition, immigrants in these programs

are also generally excluded from free or subsidised access to most government-funded services

(such as health and welfare). As a group, they are therefore unlikely to impose a significant fiscal

cost on the Australian Government.15 [Emphasis added]

72. The exclusion of Student Visa holders from ‘free or subsidised access to most government-funded services (such as health and welfare)’ is the same regardless of the heath or disability status of the

primary and secondary Student Visa holder.

73. Since a Student Visa holder is required to cover all such costs personally, a Student Visa holder who spends more on health through health insurance, or more on services such as speech pathology for

physiotherapy for a child with a disability, or more on education to access special education

services, is in fact a greater net fiscal benefit than the visa holder who does not use these services.

Actual use of services

74. Policy relating to the manner in which costs are assessed for the health requirement states that

‘actual use of services is irrelevant’16 and sets out that:

MOCs cannot take into account whether the applicant will actually use the identified health care or

community services.

They must assess… without regard to the applicant’s personal circumstances or any claims by the

applicant that they do not intend to use the identified care or services.17

75. With regard to the permanent visa holder, Policy points out, that intentions are unenforceable,

noting:

13 Productivity Commission, Commonwealth of Australia, Migrant Intake into Australia (13 April 2016) 324. 14 Productivity Commission, Commonwealth of Australia, Migrant Intake into Australia (13 April 2016) 328. 15 Productivity Commission, Commonwealth of Australia, Migrant Intake into Australia (13 April 2016) 371. 16 PAM3 - MIGRATION REGULATIONS – SCHEDULES > PAM - Sch4 - 4005-4007 - The health PIC > Sch4/4005-4007 - The Health Requirement 17 PAM3 - MIGRATION REGULATIONS – SCHEDULES > PAM - Sch4 - 4005-4007 - The health PIC > Sch4/4005-4007 - The Health

Requirement

13

there is no way such intentions can be legally enforced once permanent residency is obtained… An

applicant’s… circumstances may change, resulting in a reappraisal of their need not to use the care

or services. Alternatively some applicants may simply change their mind regarding services once

residence is achieved and the full level of costs is realised.18 [Emphasis added]

76. Policy is, however, silent on the situation of the temporary visa applicant who does not enjoy the

luxury of ‘reappraisal’ of their needs, nor of ‘simply changing their minds’.

77. The capacity of the Student Visa holder to access community services is specifically restricted:

a. by government legislation, which renders them ineligible to access health and community

services (as defined under reg 1.03); and b. by the conditions of their visa, which require them to cover all education costs.

78. There is no opportunity for the Student Visa holder to ‘change their mind’ about using community services at community cost.

6. The PIC 4007 waiver

79. Applicants applying for a Student Visa within the Foreign Affairs or Defence streams are eligible to

apply for a waiver of the heath requirement. However, applicants in other streams, the majority of

applicants for the Student Visa, are subject to PIC 4005 (which cannot be waived).

80. Paragraph 4007(2)(b) sets out in part that, providing all other criteria for the grant of the visa are satisfied, the Minister may waive the requirements of para 4007(1)(c) if:

(b) the Minister is satisfied that the granting of the visa would be unlikely to result in

(i) undue cost to the Australian community. [emphasis added]

81. As has been clarified above, the granting of the Student Visa cannot result in any additional cost

to the Australian community in the areas of health and community services. On that basis, the

waiver of the health requirement should be automatically exercised in the case of Foreign Affairs

and Defence stream applicants for a Student Visa.

7. Recommendations

82. The use of a service does not necessarily imply a cost to the Australian community. A publicly-funded service is not publicly-funded to a user who themselves covers the costs.

83. A Student Visa holder is not eligible to access publicly-funded health or community services.

Rather, a Student Visa holder is required under the conditions of their visa to cover all costs for

18 PAM3 - MIGRATION REGULATIONS – SCHEDULES > PAM - Sch4 - 4005-4007 - The health PIC > Sch4/4005-4007 - The Health

Requirement

14

education, health and welfare services for themselves and their family members. To fail to do so is

a breach of the conditions of the Student Visa.

84. A Student Visa applicant should not be costed for services which they are not eligible to use on the basis of Australian Commonwealth and state legislation.

85. Refusal to grant a Student Visa on the grounds that the Applicant fails to meet the requirements of

Provision of Health Care Criteria (in sub-paras 4005(1)(c)(ii) and 4007(1)(c)(ii)):

a. is not based on a valid assessment of ‘likely costs’ which would accrue to the community based on the provision of community services;

b. violates the principle of the Student Visa Program, and is at odds with its objective of

promoting international good will;

c. is at odds with the findings of the Productivity Commission: that holders of Student Visas are a net fiscal benefit; and that the more services a student pays for privately in the areas

of education, health or allied services, the greater the fiscal benefit; and d. is not in line with the objectives of the health requirement, namely, ‘to minimise the

burden of planned migration on the health care system’.19

86. In line with the objectives of the Policy Paper – rationalising and modernising the visa system and

making Australia a more welcoming place for applicants with a genuine desire to study in Australia – services which cannot be accessed at a cost to the community by Student Visa holders should be

removed (through the use of a legislative instrument comparable to IMMI 11/073) from the costs

considered by the MOC when assessing the health requirement for Student Visa applicants. These services would include all health, education and community services.

8. Postscript

87. This submission has specifically addressed the situation of the Student Visa applicant because of the particular conditions attached to this visa. A similar argument could be made for excluding

costs of health and community services other than age-related services from the assessment of

costs in relation to the health requirement for an applicant for any temporary visa.

19 Joint Standing Committee on Migration, Parliament of Australia, Inquiry into the Migration Treatment of Disability (21 June

2010) [2.6].