Medivac: statutory medical-transfer approval and review pathway

Policy effect

From March 2, 2019, Schedule 6 of the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 added a medical-transfer approval and review pathway alongside the existing section 198B temporary-transfer power. For the section 198E pathway, the person had to be a transitory person in a regional processing country when the section commenced, or born in a regional processing country. Two or more treating doctors had to notify the Secretary that the person needed medical or psychiatric assessment or treatment, was not receiving appropriate care there, and needed removal for appropriate care. Treating doctors could be registered or licensed in Australia or a regional processing country and could assess remotely or in person. The Minister had to decide personally within 72 hours of notification and approve unless transfer was reasonably considered medically unnecessary, reasonably suspected prejudicial to security, or the person had a statutory substantial criminal record and was reasonably believed to pose a serious risk of criminal conduct. Failure to decide in time meant deemed approval. A refusal on medical-necessity grounds went to the Independent Health Advice Panel for further assessment and recommendation within 72 hours; failure to recommend in time meant a deemed recommendation to approve. The Minister then had 24 hours to reconsider. If the panel recommended approval, refusal was limited to the security or criminal-risk grounds; failure to decide meant deemed approval. Following approval under section198E or198F, an officer had to bring the person to Australia as soon as practicable for temporary assessment or treatment. The Act also provided AAT review of section198E refusals other than those on security or criminal-risk grounds. Transfer did not itself confer a permanent visa: the statutory note required immigration detention until removal or a ministerial determination that detention was no longer required. This record concerns the medical-assessment pathway; the Act separately provided for legacy minors and accompanying family or recommended companions.

Conditions and exceptions

Validated condition or limit: The Minister had to decide personally within 72 hours of notification and approve unless transfer was reasonably considered medically unnecessary, reasonably suspected prejudicial to security, or the person had a statutory substantial criminal record and was reasonably believed to pose a serious risk of criminal conduct.; A refusal on medical-necessity grounds went to the Independent Health Advice Panel for further assessment and recommendation within 72 hours; If the panel recommended approval, refusal was limited to the security or criminal-risk grounds; Transfer did not itself confer a permanent visa: the statutory note required immigration detention until removal or a ministerial determination that detention was no longer required.

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 No. 3, 2019 An Act to amend the law relating to migration, customs and passenger movement charge, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendments relating to removal Migration Act 1958 Schedule 2—Giving of documents Migration Act 1958 Schedule 3—Recoverable payments Customs Act 1901 Schedule 4—Passenger movement charge Passenger Movement Charge Collection Act 1978 Schedule 5—Minor amendments Customs Act 1901 Schedule 6—Transitory persons Migration Act 1958 Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 No. 3, 2019 An Act to amend the law relating to migration, customs and passenger movement charge, and for related purposes [ Assented to 1 March 2019 ] The Parliament of Australia enacts: 1 Short title This Act is the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 . 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 1 March 2019 2. Schedule 1 The day after this Act receives the Royal Assent. 2 March 2019 3. Schedule 2 A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 1 September 2019 4. Schedule 3 The day after this Act receives the Royal Assent. 2 March 2019 5. Schedule 4 A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 1 September 2019 6. Schedule 5 The day after this Act receives the Royal Assent. 2 March 2019 7. Schedule 6 The day after this Act receives the Royal Assent . 2 March 2019 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1 — Amendments relating to removal Migration Act 1958 1 Paragraph 42(2A)(ca) Before “the non ‑ citizen”, insert “if”. 2 Paragraph 42(2A)(d) Repeal the paragraph, substitute: (d) if: (i) an … remove the non ‑ citizen under section 198 to another country was made but the removal was not completed; and (ii) the non ‑ citizen travels to Australia as a direct result of the removal not being completed; and (iii) the non ‑ citizen is a person who would, if in the migration zone, be an unlawful non ‑ citizen; or (da) if: (i) the non ‑ citizen has been removed under section 198 to another country but the non ‑ citizen does not enter the other country; and (ii) the non ‑ citizen travels to Australia as a direct result of not entering the other country; and (iii) the non ‑ citizen is a person who would, if in the migration zone, be an unlawful non ‑ citizen; or 3 After subsection 48(1A) Insert: (1B) If: (a) an attempt was made to remove a non ‑ citizen from the migration zone under section 198 but the removal was not completed; and (b) the non ‑ citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d); then, for the purposes of this section (which applies only in respect of applications made while a non ‑ citizen is in the migration zone), the non ‑ citizen is taken to have been continuously in the migration zone despite the attempted removal. Note: Paragraph 42(2A)(d) relates to the travel of a non ‑ citizen to Australia after an attempt to remove the non ‑ citizen has been made under section 198. 4 Paragraph 48(2)(b) Omit “paragraph 42(2A)(d)”, substitute “paragraph 42(2A)(da)”. 5 Subsection 48(2) (note) Repeal the note, substitute: Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non ‑ citizen to Australia after the non ‑ citizen has been removed from Australia under section 198. 6 After subsection 48A(1AA) Insert: (1AB) If: (a) an attempt was made to remove a non ‑ citizen from the migration zone under section 198 but the removal was not completed; and (b) the non ‑ citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d); then, for the purposes of this section, the non ‑ citizen is taken to have been continuously in the migration zone despite the attempted removal. Note: Paragraph 42(2A)(d) relates to the travel of a non ‑ citizen to Australia after an attempt to remove the non ‑ citizen has been made under section 198. 7 Paragraph 48A(1A)(b) Omit “paragraph 42(2A)(d)”, substitute “paragraph 42(2A)(da)”. 8 Subsection 48A(1A) (note) Repeal the note, substitute: Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non ‑ citizen to Australia after the non ‑ citizen has been removed from Australia under section 198. Schedule 2 — Giving of documents Migration Act 1958 1 Subsection 494B(1A) Omit “methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be,”, substitute “method mentioned in subsection (4), (5) or (5A) to dispatch, transmit or make available”. 2 Subsection 494B(1A) (note) Omit “or (5)”, substitute “, (5) or (5A)”. 3 After subsection 494B(5) Insert: Making document ava …

Review method

Source-based draft with independent Gemini 3.8 Flash verification

Other Australia changes operative in 2019

• 2019-07-01Introduction of Third-Year Visa Extension for Working Holiday Makers
• 2019-07-01Sponsored Parent (Temporary) subclass 870 visa applications open
• 2019-11-04Global Talent Independent program: targeted priority-processing launch
• 2019-11-16General Skilled Migration points: education, partner and regional nomination changes
• 2019-11-16Introduction of subclass 491 Skilled Work Regional (Provisional) visa
• 2019-11-16Introduction of subclass 494 Skilled Employer Sponsored Regional (Provisional) visa
• 2019-12-05Medivac statutory transfer pathway repealed, with limited court-proceeding protection