Posted by SCA on  June 19, 2019 |

4537 words – about a 30 minute read


“You’re not one of us and if you don’t like it – GO HOME!”

This brand of toxic prose would be rejected by every member of government – and any person claiming credentials to the civilised world.  Yet the malignant salvo opening this essay reflects the very real message, framed by markedly more civil, but no less fatal language, that shapes the brutality of Australian immigration law as it has come to rain down upon this house.

The Migration Act 1958, the legislation central to virtually every immigration issue in Australia, did not openly intend the punitive segregation it has visited upon our house, surely not in the way the Immigration Restriction Act of 1901, which it replaced, once affected in this nation. The consequences of the 1958 Act have, no less, been attached, years later, with amended policy protocols that now render a design flaw of the legislation that has corrupted our house – a consequence that shall see this good family destroyed, despite fulfilling and exceeding what we can expect of any family in Australia. The only question to resolve is whether their destruction will come tomorrow or in fifty years.   No good people should be forgotten, the way a fleeting idea dies, between thoughts and before lunch, as an unintended consequence of legislation. My daughter, in her ancestors country – continuously – since she was 1 years of age will face a deporation at the occurance of her 18th birthday, or my death, whichever comes first. Our son, because he is disabled will not face that deportation until I die, whereupon he too, like my wife, would face such a deportation order – the veracity of their “temporay-5-year-visas” no longer renewable, (or as government calls it, “able to be applied for” where I, as sole New Zealander applicant would no longer exist as a New Zealander and thus, under law, render them “ineligible” for the “New Zealand family visa” of which they currently form and must “re-form” every five years, to perpetuate the charade they are in Australia as “temporary visitors.” Have I lost you yet? I wouldn’t be surprised and you’d hardly be to blame – but government should and must be better because this outcome will be fatal upon a family within Australia who simply want to get on with it – it’s already been made hard enough for us by a disability.

Legislation should be more sacred and where it is found corrupt, even once, it should find rational resolve. “That wasn’t what we meant to happen,” should not be a statement rendered over a family destroyed by government policy applied according to the instructions – especially when the family is screaming that following the labeled instructions is killing them. The nation of our ancestors is better than this prejudice, especially where those in power and authority seek protection under such deviant nuances of law. Where there was no intentional deviance is quite irrelevant where the outcome is indisputably shocking, unfair, irrational and morally wanting.

My family came home – yes, home – to Australia seven years ago.  I brought my wife and our two children from the Philippines, where I am not a citizen but where they three were born, and where political and economic instability are but a few of the very profound challenges confronting the good people of that archipelago. I had taken a much needed sabbatical following rather turbulent effects to my portfolio in the GFC and sought a simple reset that became years in country.  Our children, Maya and Dylan, were only 1 and 2, respectively when they settled in Australia and have known no other nation as home, even casually, since settlement seven years ago. We came to the Australia of family, history, safety and security.  We found family and affirmed history but have known neither safety nor security.

Myriad generations mark our ancestry in Australia, predating the actual formation of the nation itself, and the current Australian members of our greater family reflect four living generations within an ancestral tree that sweeps back two centuries, from coast to coast and include members of the ADF, chefs in Sydney, builders in Perth, and publican’s in Brisbane.  There is, in short, nothing confected or demeritorious about our ties to country and one would be hard pressed to call us either visitors or determined punters who’d decided to have a go at calling the land Down Under anything other than home.  The revelation, however, of our son Dylan’s autism, within Australia, long after any foreign harbour, could – or should – have been sought, has seen us legislatively marginalized to within a razors edge of our fiscal, mental and very physical health for seven years – and counting.  We are not visitors.  We are migrants. And more so, too, we are migrants to a continent with which we have clear and defined deep ancestral ties.  The machinations, permutations and patently destructive application of legislative aberrations that not only brand us “temporary aliens” but set to see my wife and children dispelled, after use, is nothing short of a moral abomination. Full stop.

As a proudly multicultural, multiracial, multinational, and profoundly hard-working and law abiding family who, despite our segregation, lead exemplary lives, we are, or should be, the very epitome of an Anzac family and a shining example of 21st century Australia.  We are instead castigated to a place of lawful segregation so profound as to be extraordinary within modern Australia. That such profundity of exclusion falls upon a family with ties stretching two centuries across both Tasman nations, makes the madness of our segregation that much more compelling.

Our family have been present in New Zealand too, for almost the same period as Australia, making us amongst the few families in this nation who can claim such ties, over so long an expanse of history, to both Tasman nations Down Under.  A point of distinction that once held so much pride now little more than a kind of irony, at best, and ridicule at worst, as we find ourselves abandoned on both sides of the Tasman before a child’s disability. The most aberrant of that legislatively endorsed discrimination being clearly felt in Australia.

The normal challenges of settlement, for any family who genuinely call Australia home are challenge enough.  The presentment of young children makes that settlement remit exponentially more difficult.  But the challenges of settlement should not be made so confected by legislative instrument as to divide a house and cast the four souls of that place to unresolvable legal misery.

Where I, as father and New Zealand citizen, born of a long deceased Canadian father and New Zealand mother (permanently in Australia for a quarter century) affect lawful immigration compliance only as a New Zealand citizen my protections are few, but they tower over those of my wife and children, who must hold a separate visa than my own, and which brands them little more than child visitors or in my wife’s case, a guest worker – and worse still, guests who may under their “461-visa” be indicated as “members of New Zealand family” but because they are neither legally indexed as Kiwi or Australian, and because they don’t even harken from any of the 11 nations with Reciprocal Health Agreements, do not even possess a Medicare card – nor shall they ever be entitled to even the most basic of services without full retail costing applied.  The NDIS, open to so many, and an application process decidedly difficult, was navigated by us only to be told no, that under my lawful designation as a New Zealand citizen in Australia the was eligible for application but that my own son was ineligible.  We go forward and we do so as we pay for every plaster, every aspirin and every major medical emergency – many of such costings ill served or not served at all by the dubious “visitor” health cover that serves as the sole option to my wife and children as we affect tacit agreement to this charade that they are visitors to this nation.

Such costs having devastated us, even as we have affected every mandate – and far more – asked of decent people, to affect a fair go and a life reflecting of those efforts within a nation that is by every rational index our genuine home.  The historical ties to Australia and our very real and breathing four generations of Australian family ironically delineating us from so many Kiwi families even as our own treatment before this Commonwealth are markedly worse than those endured by virtually any other “New Zealand family”, our ties to Australia dismissed in a moment by an immigration department who do not consider broad merit in visa application metrics that rely on simple analytics and yes/no answers – a system of itself, inherently ripe for abuse and rorting, but that is a consideration time and focus mandate we set aside in this essay.

Where the revelation and diagnosis of our son Dylan’s disability within Australia serves to trigger a nuanced distortion of policy protocols, attached to legislation, in a way most people in the public would never have cause to consider, (and many, justifiably, struggle to comprehend) my small family have been stopped dead from any dream that our rightful home in Australia can ever be legally called home.  Dylan’s autism effectively blocks our executing the visa (skilled Independent visa (subclass 189) New Zealand stream) that enshrines our permanent place in Australia, in the form of this legal permanent residency visa, with citizenship eligible, by application, only one year after the date the permanent residency visa is awarded.   Instead we are not only lost in limbo, but a limbo that will resolve in my family being definitively torn apart – even as they are torn from Australia at a time marked by my death – my death – their eligibility for their “temporary visitor” visas applied every five years until such time the metric of that visa, my index as a New Zealand citizen in Australia, dies. The level of obscenity and moral bankruptcy around this outcome, intended or otherwise, must find remedy where the Australian Government tenders credentials to the exclusive group of liberal democratic nations who secure such blessings as those of life, liberty and equality.

Under the legislative nuance of my wife and children’s “temporary 461 visas” that attach them as members of a New Zealand Special Category Visa (myself), our daughter Maya, in Australia since she was a 1 year old child, will face no opportunity to renew her “temporary 461 visa, which must be renewed every 5 years to enshrine the legal veracity of the visa as temporary, when she turns 18.  A child so overflowing with that which the Commonwealth should protect as good shall be effectively ordered out of Australia at age 18 (or if we manage to carry the burden of “foreign funded university fees” until she is 23).  Government will say she is “not being deported” only that her “temporary visa” was “declined” or otherwise not awarded – she not being eligible as a non-New Zealand citizen starting at 18 years of age or where her dead father would no longer trigger the nominal allowances of her “temporary visitation”.   I leave it to the reader to establish the moral veracity of this obscenely legal aberration, even as I leave the reader to consider the years of anguish I have experienced trying to live – and sleep – with such knowledge.

The 1958 Migration Act once filled a single notebook and set to frame more rational and fair measures to lawfully enshrine migration policy of Australia.  The Migration Act 1958 set to definitively replace the Immigration Restriction Act 1901 (and the White Australia Policy the 1901 legislation so effectively helped enshrine for almost six decades).  Today the modest presentation of the one volume Migration Act 1958 and its subordinate amendments, policy protocols and footnotes now require multiple bookshelves – I know, I’ve had to read them all.  The probability of such expanded legislation, some would say bloated, whether intentional or incidental, to have unintended consequences makes the defense of Government that no one may be above the law – a kind hue and cry that reads well, in a soundbite, but may bite to the bone, and indeed soul, of lawfully abiding people in a way that quite curiously – even dubiously – may fail every test of accord with the fair, rationale and just application of the law.

The current body of the immigration legislation, despite the best intentions of its 1958 framers, has found the ensuing application of that law upon our house, decades later, perpetuating the very discrimination and inequality it’s 1901 predecessor had quite flagrantly intended. Yes, the ensuing legions of regulatory offspring, borne of the 1958 act, may not be recognizable to the original framers intent in 1958, but that does not make the consequences of the statute upon my wife and children any less devastating in their lawful segregation and very real economic apartheid.  My family have been reduced, at best, to a tragic case study in the unintended consequences of legislation.  At best.

The very immorality of the 1901 legislation and the White Australia policy it enshrined, in both its covert and overt discrimination and inequality, should not now find even unintended echo in the prevailing legislation – especially where such injustice and inequality has been exposed to the light of reason. To do so, is to further deny a family basic democratic and civil parity within the Australian nation that our own labour, contribution and ancestral family ties have forged, and continue to foster, after two unblemished centuries of history and seven years of personal misery.

In markedly detailed communiques reaching back to July 2017, and all forming record, I have sought to define our distress and indicate remedy that could be legally accorded with the permanent residency visa (skilled Independent visa (subclass 189) New Zealand stream). A visa that offers a clear remedy to our lawfully enshrined exclusion from permanent recognition within Australia.  I also repeatedly highlighted the nuance that impedes the completion, much less awarding, of the permanent visa.

Even where I detailed the finite dilemma I finally received direct communication from our lliason to Government, our Federal Member for Fisher, Andrew Wallace MP, who in a letter dated 10 June 2019 expressed the following,

      Thank you for your patience in waiting for a response. After speaking to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon David Coleman MP, I have been advised by the Minister that at this point in time the Minister is unable to directly intervene and grant you the exemptions that you have requested as you have not formally lodged your Skilled Independent visa (subclass 189) (New Zealand stream) application. The Minister has advised me that it is possible for you to apply for an income and health exemption. To be granted the exemptions you will need to attach the relevant supporting documentation to your 189 visa application. Once you have lodged your 189 visa application, the Department of Immigration will then consider the request for exemptions. The Minister would also like to inform you that the he is only permitted to use his Ministerial powers to grant exemptions if an application has already been refused and a ‘notice of refusal’ issued to the applicant. The Minister has powers under the Migration Act 1958 to replace a decision of a merits review tribunal on a person’s case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so. While the Minister cannot directly grant you the exemptions that you have requested, it is advised that you request the exemptions within your 189 visa application to be considered by the Department of Immigration. I hope that this information is has been of assistance and I wish you all the best with your application.”

It is indeed “possible” to apply for an income and health exemption.  I know such exemptions, “theoretically” exist – I have painstakingly detailed them to the good people of Government in my many communiques dating back to July 2017.  I also know that under narrow legislative authority such exemptions can “actually” be possible, as Mr. Wallace indicates.  But Dylan’s autism fundamentally blocks his eligibility to a “medical waiver” that grants the visa application the integrity to proceed through department, and, even where it is rejected find audience before the Minister.  Dylan’s autism essential blocks his “inclusion to the exclusion” that permits the application to be submitted.  We are, in the words of parochial parlance, dead in the water – or continent – as the case may surely be.

The visa, at the risk of further alienating the readers interest, has seven broadly defined requirements, including five years residency and character, which are both reasonable and fair. However, where I provide fulltime care in service to Dylan’s disability my capacity to honour the income requirement is compromised.  This consideration almost inconsequential when set against the more punitive consequence that is Dylan’s disability – a disability that compromises my income even as that medical jeopardy is the nucleus that effectively destabalises the “possible” exemptions of thief visa, the execution of the visa, or even the consideration at the department level of the visa. The minister becomes more a distant dream we cannot so much one year hope to find but never be allowed to proceed towards.

I have researched the veracity of a “medical waiver”.  It won’t be granted to Dylan because his autism falls within a costing value metric that denies him participation to the waiver.  The “medical waiver” finds its value so reduced that only the monetized value of the child before the Commonwealth holds any worth; an outcome that not only disallows the very promise of Mr. Wallace but so too finds real world outcome that is stunning in both punitive component and over simplicity, especially where we do not even draw upon basic Medicare – and must bear excruciating basic costs disregarded by others – even punters from any of 11 nations under the RHCA.

Our family’s value to Australia not only transcend simplistic base monetization but our return into the community and economy is a numerical consideration accorded no value.  Our “value” does not support the unilateral indexing of our worth under a metric that deigns to define our son as a threat to the public purse, from a health condition that carries heartbreak but limited federal costing consequence, even where such consideration should be legislatively allowed to foul the application.

It should also be noted that I do not believe the good Minister or Federal Member were attempting anything but further clarification, but where they have not endured the personal pursuit of such advice, that is to say, where they have not actually had to execute such application in the prescribed method, the theoretical considerations they tender find stunningly poor resolve in real world application (metaphorically and literally).

Recently, in the news, an Irish couple, with no ties to Australia and both coming together from the Emerald Isle on holiday, took a punt on Australia and decided to have a go at permanent settlement in the past decade. They have just been awarded permanent residency.  Their story reveals the paradox of process over which we cannot triumph and highlights the stunning lack of protection we have endured from the first moment we entered the Australia of our ancestors and large existent Australian family – Dylan’s disability clearly a pre-existing condition, predating our own submission of permanent residency visa.  That application disallowed to even begin the process towards inevitable denial, years from now.

They Irish couple gave birth to their son – after they submitted their application for a similar permanent residency visa but one obviously not under the heading of the New Zealand stream.  When the child was born they attached him to the existent application, already submitted and in process – this distinction critical because the application had found life to be submitted before the child was born.

Where the child was found to have cystic fibrosis, and was thus deemed a medical “risk” the application – again, already in the queue, was of course, denied because no medical waiver would be issued on a costing metric.  Ironically, the couple from an RHCA nation have never, at least, had to worry about medial costings, having always been allowed Medicare.  So too, their beautiful son, whose cystic fibrosis requires Ivacaftor (trade name Kalydeco), a drug on the PBA that holds a value and thus costing to Government around $300,000 a year was always available to them without the burden of its profound retail cost – where every member of this family was entitled to a Medicare card. The application of these new permanent residents of Australia had managed to “get into the queue”, even for predictable rejection (allowing the Minister to intervene, where he chose to do so, there being no legislative mandate for his involvement only a legislatively allowed right to intervene).  This nuance of process not open to us – even as Dylan receives not even the dignity of Medicare in the nation of his ancestors, nor any hope the Minister will see his brief in years to come.  Our application for permanent residency remains open and fundamentally unable to meet the analytics of online process that allow its submission… even where that submission is in service to some future rejection… in hopes the Minister may decide to consider our case in years to come.

Adherence to proper process has been so incontrovertibly fouled as to make successful accomplishment of the request of application having audience with the Minister a circuitous nightmare without resolve.

I tested the veracity of all my claims and research through some proportionally expensive consults with immigration lawyers in Canberra.  The value of such disproportional capital value to a family under unspeakable fiscal assault was nothing more than a confirmation of what I already knew – and a sense of shock amongst one senior partner at the Gregorian knot I’d managed to untangle, define and seek to otherwise render useful in binding us to the nation we genuinely make home.

We expended these princely sums in service to legal “consult” against our already besieged purse because I was sick and tired of kind but hopelessly confused staffers representing MPs telling us we should get a lawyer or migration agent – surely in much the way one feels a sense of illicit peace form dispatching a child on an errand within the home that will buy the directing party peace even as it sends the other side off on a fool’s errand that only further distraction may keep from repetition.  I have not gone away.  I could – but I am made of stronger stuff – and besides, I could never abandon people in clear jeopardy and distress of the kind that haunt my house.

Let us continue to exemplify the best of the Australian ethos as we care for vulnerable children and serve a crushing disability with quiet dignity.  We cannot however, endure much longer, the effects of intransigent policy distortions so finite that members of Government themselves have not identified them.  Policy aberrations that have become so consequential after seven years as to make living that life so punitive as to be scarcely livable.

We do not seek to act above the law, but where the rule of law is defined with such serpentine affect that it blocks our legal pathway to enshrine our lawful permanent place (lives that by any rational or even sane measure are permanent in Australia), there is nothing fair or reasonable about the legislative segregation that punishes this family for failing to abandon a disabled child – even as we have no true, genuine or rational home to take that child to and even as those legislative policy consequences set to ultimately destroy and tear apart this family at the time of my death.

After what we have been made to endure in Australia, at our most fatigued hours, we sometimes feel the burden to seek such home – tomorrow.  If only the fanciful alternate home, which our exclusion so dogmatically relies upon, truly existed.

I may hold citizenship in my father’s homeland of Canada – but I have not lived in that nation since I was a child and father is long deceased. I may hold American citizenship but my family is overwhelmingly Down Under and present in Australia (and while I was educated within the United States, notably at the University of California at Lost Angeles), I have not been present upon North American soil for over a decade and possess no property, commercial or professional ties to that region.  Where we tore away from our broad greater Australia family, like any genuine Australian household and were made to flee Australia – in a moribund inversion in which we are made little more than refugees – such a global move, seen only through the detached lens of costing metrics would take approximatively the equivalent of a 5% deposit on a Sydney home, or $50,000, against our current profound disadvantage to find ourselves effectively homeless and with no citizenship guarantees on the other side of the world. I may hold New Zealand citizenship but that nation of ancestry, as long and deep as those to Australia offers us even less hope or refuge than Australia (even where, at this writing, I am still diligently petitioning that good government to find in favour of my children’s grant of New Zealand citizenship).  My wife and children, born in the Philippines, have not departed Australia since 2013 for even one day and have not – ever – traveled beyond the greater borders of Australasia.  We are not so much starved for choice but crucified by consequential rights that hold legal consequence but no existential integrity for a family simply trying to survive.

There may, literally, be no house grappling with such profundity of consequence – and grief – as they attempt the honourable challenge to raise up a family and bestow their best to a disabled child, long forgotten, by the governing powers that now sit in lawful judgment upon the continent of the child’s forbearers.

You now possess the detail.

Imagine – though now you don’t have to imagine – because you now have the facts befalling this family in clear perspective by which to view a fatal design – a fatal design flaw of legislation that will echo and torment this family even as it ultimately destroys this family – whether that is after a decade in Australia or after fifty years, such shall come to pass, though for our daughter, in country since she was a 1 year old innocent, that fuse is lit in 10 years, upon her 18th birthday – after 17 years of her life solely in Australia.  Australian families struggle to maintain health and happiness within reasonable challenges of life – we must do so before multiple ongoing daily tragedies – and do so with the ultimate knowledge we will be, quite literally, terminated, for living exemplary lives in the face of such daily tragedies.

A design that will come to pass despite their fulfilling and even redefining sacrifice in service to growth and aspirations, a design that will come to pass after decades forward in service to work, family and yes, country – even as they do so with profound and powerful exclusions to a competitive chance at life. All of this as they reflect the best values of not only a family, but of individuals, while each cherishes and protects a disabled child in the nation of his ancestors. A child, it warrants saying one last time, who does not even possess the decency and basic respect of a Medicare card, to say nothing of every other door slammed in his face.

They do not live with the promise their hard work, sacrifice, and dare I use the word parochially – citizenship – shall be rewarded with an incremental return to that life – no.  They will instead “aspire” every day under a fatal cloud as they ultimately shall see their lives torn apart – separated like criminals for reflecting the best we can ask of anyone, and having done so from a place of profound disadvantage, only to see their sacrifice and misery accorded an ultimate terminal blow with deportation where a charade of a temporary visa is not found “eligible” for renewal.  This is not a national shame, it is a kind of national homicide.

After what we have been made to endure in Australia, at our most fatigued hours, we sometimes feel the burden to seek such home – tomorrow.  If only the fanciful alternate home, which our exclusion so dogmatically relies upon, truly existed.

Addendum: This essay was first published at 19 June 2019.  The opening line shockingly prescient amidst the almost verbatim statement, once seemingly verboten amongst leaders of liberal democracies, by one Donald John Trump in America at 14 July 2019 (not four weeks after this essay was first published)  illustrating, with stunning effect, the toxic consequence of marginalising people  within any democratic nation that is, (or should be) by rationale measure, their home.



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