Sensitive question

[Guest jasongd]

Hi, I have a brother and two sisters,

 

One sister has left for Australia and my Brother is about to go. I am hopefully going in a year or so. The question I have is my mum is going to be here with my other sister who has down syndrome and is in her forties and is a dependant of my mum.

 

Would my mum get to australia on the last one left visa as my sister is a dependeant or would my sisters disability stop my mum from getting a visa.

 

Any help on this matter would be great

 

Jason

[Gollywobbler]

Hi Jason

 

It would not be straightfoward at the moment but everyone is hoping that the situation will improve.

 

Your mother would not be eligible for a Remaining Relative Visa because Parents are specifically excluded from eligibility for that. However she will meet the Balance of Family Test for Parent migration, from what you have said.

 

http://www.immi.gov.au/migrants/family/visa-options.htm

 

http://www.immi.gov.au/allforms/booklets/books3.htm

 

At the moment, the main issue is whether or not your sister would be able to meet the Health requirement for migration. You say she has Down Syndrome, which is a disability, not a disease.

 

A few years ago, the UN produced the Convention on the Rights of Persons with Disabilities. According to the CRPD, somebody who is disabled has just as much of a right to emigrate to another country as someone who does not have a disability. This idea is based on what is called the "social model" of disability.

 

http://en.wikipedia.org/wiki/Convention_on_the_Rights_of_Persons_with_Disabilities

 

Australia still relies on the "medical model" of disability as far as immigration to Oz is concerned. That is, it treats prospective migrants who are disabled as having some sort of deficit which is likely to make it expensive to look after them if they move to Oz.

 

Australia has ratified the CRPD but it did so under what is called the "Optional Protocol." This allowed the Government to say that they embraced the CRPD with regard to everyone who is living in Oz but they reserved their right to weed out prospective immigrants with disabilities.

 

Eventually the whole thing was referred to the Joint Standing Committee on Migration.

The JSCM held a major Public Inquiry. They produced a Report entitled Enabling Australia and they presented that to the Aussie Parliament on 21st June 2010.

 

http://www.aph.gov.au/house/committee/mig/disability/report.htm

 

The 2010 General Election in Oz was called soon after the Enabling Australia Report was presented to Parliament, so Parliament was dissolved and so far, the Aussie Government has not made any official Response to the Report.

 

The Report contains 18 Recommendations, all of them recommending a fundamental change in the Health requirement for migration. It is worth your while to study the Report and also some of the Submissions. Please just click on the various sections of the microsite about this.

 

As I see it, one of the fundamental problems with the whole thing is the threshold. At the moment, if the MOC (Medical Officer of the Commonwealth) believes that caring for someone in Oz would be likely to cost $21,000 AUD or more during their first 5 years as a Permanent Resident, the MOC is required to advise the Minister for Immi that the prospective immigrant "does not meet" the Health requirement for migration, which is set out in Public Interest Criterion 4005 of the Migration Regulations 1994. The Minister is not allowed to query or override the Opinion of the MOC. So DIAC's hands are tied. If the MOC says, "does not meet" then in most cases, there is nothing that DIAC can do.

 

The figure of $21,000 was an administrative figure that was set in 1998 or 1999. It is now hopelessly out of date, as most people agree. In May 2009, DIAC told the Senate Estimates Committee that they thought that they would be recommending a new threshold figure of $100,000 AUD over 5 years and they thought that the Minister for Immi would be likely to accept it.

 

In February and March 2010, the JSCM had two oral evidence sessions in Canberra with DIAC and Dr Paul Douglas, the Chief Medical Officer of the Commonwealth. It is worh reading both of those Hansards and you can find them by clicking on the link for Public Hearings. DIAC were asked how they were getting on with the new threshold? They said that they were still waiting to hear from other Government Departments. They did not say which other Departments but they are likely to be DoHA, FaHCSIA and the Treasury.

 

God knows how long it might take for 4 Govt Departments to agree on something that is self-evidently needed and shouldn't take more than 5 minutes to agree on, frankly....

 

Meanwhile Dr Douglas provided a reasonably clear description of how the MOC assesses a visa applicant who has a known medical problem. (Personally I think that one of the fundamental problems is that PIC 4005 does not distinguish between a disability and a disease, which is one reason why the JSCM say that the whole of PIC 4005 should be changed.

 

DIAC themselves made a lengthy Submission to the JSCM, though. In it, they argued that the Health requirement itself need not be altered but said that the Minister should be given the discretion to Waive the strict terms of PIC 4005 on every occasion when it would otherwise be a problem. Thus, even if the MOC says "does not meet," the Case Officers processing the visa application would be able to consider all of the relevant facts and the implication is that PIC 4005 would be Waived in your sister's case, so as to facilitate reunification of your mother and all of her children, out in Oz.

 

The JSCM completely ignored what DIAC said they wanted. I don't know why they did that, but they haven't even mentioned it in the Report.

 

After the Report was published, I exchanged e-mails with George Lombard, who is a very capable Regstered Migration Agent in Sydney. He has loads of experience and he deals with a lot of visa applications where the Health requirement is going to cause a problem. George said he doesn't know why the JSCM ignored DIAC's contentions. He went on to say that if the Government decides to alter the law, he thinks it would take a good 5 or 6 years before any new legislation about this appears on the statute book. He also said that if DIAC decide to be bloody minded about this then, given that they are notoriously intransigent, it could easily take longer than 5 or 6 years.

 

http://austimmigration.com.au/site/?q=node/1

 

This whole question is hugely emotive and stressful at the best of times but in some ways it is even worse when the problem is Down Syndrome. 95% of the most high-profile, ground-breaking litigation has involved cases where the person concerned has Down Syndrome.

 

The best-known of these cases involved Dr Moeller in 2008.

 

http://www.theage.com.au/national/german-doctor-wins-visa-20081126-6hzr.html

 

His lawyers gave a whole new meaning to the idea of "publicity" and since he is a doctor of medicine, the Australian public roared at the Minister for Immigration to grant the visas and be done with it. The Minister for Immi fielded Mr Peter Vardos, Head of Policy at DIAC. He said that the way tha legislation works was what had caused Dr Moeller's case to become so protracted. He was right about that but the Aussie Public told him to shut up and continued to roar their disapproval at the Minister!

 

http://www.minister.immi.gov.au/media/media-releases/2008/ce08113.htm

 

It was partly to appease public sentiment that the Minister concurred with JSCOT and asked for a Public Inquiry by the JSCM.

 

Although Dr Moeller and his family were granted Australian PR visas in the end, Dr Moeller has since migrated again and he has now taken his family to the USA instead.

 

Dr Moeller is hugely important in Oz politically. He had the whole Government cringeing with embarrassment. However it was common ground between Dr Moeller and the MOC that young Lukas Moeller is severely affected by Down Syndrome and that he will never be able to lead a normal life because he is severely disabled.

 

Legally, Tracey Robinson is more important than Dr Moeller. She is a British midwife who was working in Perth. Her son David also has Down Syndrome but he only has it very mildly and it is common ground that he should be able to lead a perfectly normal life once he grows up. The Full Court of Australia ruled that the MOC had applied the wrong test in Master Robinson's case. The MOC had said that he "did not meet" PIC 4005 solely because he has Down Syndrome. The Court said that the wrong test had been used and that the proper way to interpret PIC 4005 is to work out how badly disabled the person is and then apply the $21,000 to a hypothetical Aussie with the exact same degree and severity of the condition. Would it cost £21,000 to look after a similarly disabled Aussie for 5 years? In the Robinson case, the Court decided that it would not cost that much if the MOC had interpreted PIC 4005 correctly.

 

Sharon Ford made a moving reference to Mrs Robinson's case in her own Submission to the JSCM:

 

http://www.aph.gov.au/house/committee/mig/disability/subs/sub074.pdf

 

The Robinson case was ground-breaking new Law. It is a fantastically important case, legally. However it took Dr Moeller to give the matter stratospheric publicity, and Mrs Robinson's family's visas were eventually granted by the Minister about 3 days before Dr Moeller's visas were granted. Mrs Robinson had been in limbo since 2002. Dr Moeller had only been quarrelling with the Government since about 2005/6.

 

So the essay above describes the background. We all hope that the Aussie Government will alter the law and that they will do so sooner rather than later.

 

That said, there is more than one way to skin a cat, as they say. How old is your Mother, please?

 

Cheers

 

Gill

[Guest jasongd]

Hi,

 

I have read your post with great intrest and the answer to your question 1s 73 born in 1938.

 

Jason

[Gollywobbler]

Hi,

 

I have read your post with great intrest and the answer to your question 1s 73 born in 1938.

 

Jason

 

Hi Jason

 

Thanks for your prompt reply. I believe strongly that whenever anyone has an issue such as the one involving your sister, the family concerned need to understand the whole issue fully and properly themselves, rather than simply relying on a migration agent to suggest what they ought to do.

 

Because your mother is over 65, she would be eligible to apply for a Contributory Aged Parent Visa or a non-contributory Aged Parent visa provided that both she and your sister have their feet on Australian soil at the time when they apply for the CAPVs or APVs and provided also that Mum can show that she meets the Balance of Family Test. **

 

http://www.pomsinadelaide.com/forum/adelaide-migration-issues/4509-cheap-parent-visas-part-i.html

 

In the thread above, I have described the drills for the non-contributory Aged Parent visa subclass 804. However the drills are exactly the same if the Contributory Aged Parent subclass 864 visa is chosen instead.

 

This forum only allows 10,000 characters in a post on a thread, so I will need to split this reply into 2 or 3 answers in order to ensure that you understand everything fully and to deal with the practical limitations imposed by the forum's software.

 

In order to be eligible to apply for an APV or a CAPV, both Mum and your sister would need to be in Australia at the relevant time and additionally, Mum would have to show that she is eligible to apply because she meets the Balance of Family Test.

 

The way that the BoF Test works in this case is that your sister in Oz, probably, would act as the Sponsor for your mother and your other sister. The sponsor MUST be "a settled Permanent Resident or Citizen of Australia." It doesn't matter if the Sponsor is not a Citizen but she MUST have a visa that grants her Permanent Residence, OK? So what sort of visa does your sister in Oz have, please? Is she a Citizen as yet? How long has she been living in Oz?

 

With regard to your brother, the legal requirement for him (Child 2) is different. He only needs to be "lawfully and permanently resident in Oz." This idea is not as stringent as it is for the Sponsor. So what sort of visa does your brother have, please?

 

You are Child 3. What sort of visa have you applied for/are you planning to apply for, please?

 

I am asking these questions in order to try to get an idea of exactly when Mum will be regarded as being able to meet the BoF Test because it is crucial that one does not jump the gun with this aspect of the issue.

 

Cheers

 

Gill

[HEAPS GOOD !!!]

Once again lost for words.....

 

 

HG

[Gollywobbler]

Hi again, Jason

 

You say that your sister is an adult but she is dependent on your mother because she has Down Syndrome. Is she fairly severely disabled by this condition? With DS people, the degree and severity of the condition varies enormously, as it did between young David Robinson and young Lukas Moeller, who were both aged about 10 when their parents started to argue with the Aussie Government.

 

Are your sister and your mother both British Citizens and do they live in the UK, please? If yes, does your sister receive Disability Living Allowance, please? That is usually a fairly good indicator of whether the MOC would be likely to advise that the person "does not meet" the Health requirement.

 

For the moment, I will assume the worst - which is that the MOC would say that your sister "does not meet" the Health requirement for migration. In this scenario, it then becomes a game of tactics and strategy between the visa applicants and DIAC.

 

In the worst case, your mother would apply for a CAPV or an APV, and your sister would be included in that application as her dependant. The visa would be refused because your sister "does not meet" the Health requirement for migration.

 

So Mum appeals to the Migration Review Tribunal. If your sister's degree and severity is marginal then it might be worth involving the Review Medical Officer of the Commonwealth at the appeal stage. The RMOC re-does the relevant person's medical assessment from scratch and the statistics are that the RMOC takes a less harsh view than the original MOC in about 51% of the cases where an appeal to the MRT has been made.

 

(Dr Douglas argues that this does NOT mean that the MOC makes mistakes. He told the JSCM that frequently, the MOC requests further medical information that the visa applicant does not supply, so DIAC are forced to refuse the visa. Then the applicant appeals to the MRT, gets his act up together and supplies the missing information to the RMOC, who concludes that the applicant does meet the Health requirement after all. Dr Douglas is a nice guy and he is a truthful witness. However he was unable to prove this claim to the JSCM because the MOC does not keep any accurate, reliable records about it. The truth of that is that it is because DIAC expect him to run the Health requirement on a shoe-string, so the poor man never has enough money to be able to do his job as thoroughly as the JSCM might prefer.)

 

Sometimes, though, it is common ground between the parties that there is no point in involving the RMOC. The visa applicant accepts that the RMOC will also say, "Does not meet," in which case there is no point in wasting money on the RMOC's fees. The upshot is that the MRT is then forced to rely on the Opinion of the original MOC, in which case the MRT will affirm DIAC's original decision to refuse the visa.

 

However this is an essential procedural step because it unlocks the door to the Minister. S351 of the Migration Act 1958 says that the Minister alone (acting in his sole discretion) can "substitute his own decision for the decision of the MRT" if the Minister considers that it would be "in the public interest" for him to do so. So it is not possible to apply for Ministerial Intervention unless the MRT has refused the visa on appeal.

 

So in your case, the MRT affirms DIAC's decision to refuse the visas. Mum then applies for Ministerial Intervention. That takes several years and it is possible to appeal to the Minister more than once. When he was the Minister for Immi, Senator Chris Evans moaned about the fact that there are usually about 4,000 applications for Ministerial Intervention on the Minister's desk at any one time. But there is only one Minister and he is the only person who can make the eventual decision. The whole thing depends on his sole discretion.

 

Details of the applications for MI are not published. Once a year, the Minister simply tells Parliament how many visas he has granted and how many he has refused. By convention, Parliament does not pry because Parliament has granted sole discretion to him. Anecdotally, the lawyers who make these applications gossip amongst themselves and the consensus is that the Minister only grants about 10-15% of the applications for MI.

 

I'm an English-qualified solicitor by background though I am not also qualified in Aussie Law. The trouble with this sort of gossip is that not enough of the facts are available. How strong were the applications for MI? How many of the applications were made by people acting on their own and how many used the best Immigration lawyer that they could find - ie onne who had made several applications for MI before? How many of the visas were granted on the second or third application for MI?

 

The anecdotal stats don't really mean very much unless you know all of the relevant facts and it is not possible to discover enough about those, so the whole thing is a bit of a black art. The best hope is to use an Immi law solicitor or a registered migration agent who has made several MI applications successfully in the past.

 

Continued/.....

[Gollywobbler]

In your Mum's case, she and your sister would be living in Oz on Bridging Visas throughout the appeals process. The Minister has been elected by Aussie Citizens, not by foreign visa applicants.

 

Therefore what is "in the public interest" in a situation like yours depends on convincing the Minister that members of the electorate - Aussie Citizens - would suffer unacceptable hardship unless he grants the family's visas.

 

First, there are Mum's other 3 children and her grandchildren. Is it right that they should be deprived of the companionship of their mother/granny and their sister/aunt merely because Mum's remaining child is someone with a disability? According to the CRPD, it is unconscionable that family love and companionship should ever be denied just because somebody involved has a disability. How would they all benefit from worrying about Mum and Sister being made to live in some other country? They wouldn't benefit. They would worry themselves stupid and they might well feel constrained to abandon Australia so as to ensure the unity of the family in a less intolerant country than Oz. That would damage the Aussie economy but that is too bad - the family has more important considerations than the Aussie Government's economic problems.

 

What about any children under the age of 18 who have either been born Aussie Citizens or have become Aussie Citizens by conferral? Is it right that those children should be uprooted to another country when Australia is their home?

 

Usually the applicants for MI get their local Great & Good involved as well. People like local MPs, teachers, psychologists and vicars. All of them tell the Minister that it would be in the public interest for him to grant the visas rather than risk damaging the rest of the family and the rest of their local community. The rest of the community has come to know - and has grown to value - Mum and sister immensely because they have been living in this local community for several years by the time that the Minister gets round to considering the application for MI. Is it right to deprive them of two people who have become stalwarts of their local community?

 

So you get the drift about the sorts of arguments that would be used when it comes to an application for MI.

 

However, all this is a long drawn out process - which is very stressful for everyone in the family - and it is also costly. It costs $x to apply for the visas. At the moment, it costs $1,400 just to lodge an appeal with the MRT and you do not get that money back if the MRT affirms the visa refusal. The RMOC charges an extra $700 or so, I believe, and I don't know whether the RMOC's fees are ever returned.

 

I don't know whether the Government charges for an application for MI but even if they don't do so at present, give them some time! By the time you need to do it, there would probably be a fee! Governments don't often supply services for free!

 

Plus it is very stressful, particularly for your mother. That might have an adverse effect on her health, so at the very least she might incur medical fees that she would not otherwise have incurred.

 

It is not essential to use a migration agent or a lawyer for any of this. Personally, I wouldn't use a migration agent for the visa application unless s/he could convince me absolutely that s/he would be able to "add value" to the proceedings in a way that I would not be able to do by myself. (The agent would need some bloody good arguments to be able to convince me - an arch sceptic and better qualified than some of them - about this! Parent visas are the easiest applications to make out of them all. Therefore to pay someone else to do something that I can do by myself amounts to good money for old rope, in my jaundiced view!)

 

That said, though, I'd do some serious questioning about whether or not to use a migration agent for an appeal to the MRT. The DIAC website is straightforward and clear, so it is easy enough to work out what to do in relation to the visa application itself. The MRT website is about as clear as mud and one only has about 21 days from the visa refusal in which to lodge the appeal to the MRT. On balance, I might well use a migration agent for an appeal because it would save time to do so and it would also save me hassle and worry, so I'd almost certainly consider the agent's fees to be worthwhile.

 

I would definitely use a solicitor/barrister or a Registered Migration Agent for an application for Ministerial Intervention. If nothing else, two heads are better than one and the agent might be able to suggest arguments that I hadn't thought of by myself, plus if s/he has convincing prior experience of making these applications then I would definitely want the reassurance of having him/her on my side.

 

The going rate at the moment is that RMAs routinely charge between $2,000 and $5,000 for an onshore application for a CAPV or an APV. That is a heck of a lot of money for something that I could perfectly easily do by myself. I don't know what the going rate is for an appeal to the MRT but I'd expect it to be the same as for a visa application and possibly more. Ditto an application for Ministerial Intervention.

 

I do think it is essential to consider both the probable costs and the stress before you decide what to do for the best.

 

My own mother has a Contributory Parent subclass 143 visa. That is an offshore visa but there were technical reasons for using an offshore visa in her case. She is disabled - she was 84 at the time and she broke her back some years ago, so she is largely wheelchair bound. I did the visa application myself but at one stage, it looked as if the visa might be refused on medical grounds. If so, I intended to appeal to the MRT because I had researched the question of Mum's meds to within an inch of its life and I was convinced that there was no justification to refuse her a visa on medical grounds.

 

I wailed at George Lombard and asked him to take over from me, just in case we had to lodge an appeal. George refused. He felt that it would be improper for him to take over for nothing better than holding my hand and soothing my panic. With hindsight, I now agree with him but at the time, his refusal was not helping my worry!

 

I had already made it clear to George that I would not be prepared to be fobbed off onto his buddy Peter Bollard:

 

http://www.peterbollard.com/

 

Feng Shui or not, I am not persuaded by the idea of practising Law in a shrubbery! I don't want my lawyer peeping out from behind the bloody ferns! Also, Peter Bollard's name is bandied around on British Expats with wanton extravagance. If everyone who is recommended to him goes to him, The Bollard would need 25 clones of himself just to handle the workload, I felt.

 

If George wouldn't help, there are other lawyers who would. I settled on Nigel Dobbie, who has since become a personal friend:

 

http://www.ddilawyers.com/directors_profiles.php

 

Nigel's professional credentials are absolutely impeccable, plus there are no signs of any ferns or other foliage. Nigel also said that there was no need for him to get involved formally at that moment but he told me that if the visa was refused then he would take over from me the same day. I liked him immensely, trusted him completely and decided that he was exactly the right lawyer to have to put up with me! (Lawyers make the worst clients in the same way as doctors make the worst patients. In both cases, one's own imagination becomes lurid and vivid, so one becomes a complete pain in the neck to the person who is actually managing the case. It is impossible to remain "detached" when someone whom you love very dearly is involved. Nigel would just have had to put up with me trying to second-guess him every step of the way, without really understanding anything except my own panic. I think he realised that but he still said that he was willing to put up with me, which makes him a saint in my view.)

 

In the end, Mum's visa was granted without the need for an appeal but it might help you to understand the thought processes that I went through. Probably woolly, muddled thoughts but she is my mother and I didn't have a Plan B. She wanted to emigrate to Oz to be with my sister and her children - Mum's only grandchildren. To get that outcome for Mum, I had to deliver the visa and when I thought it might go wrong, I wasted no time in howling at Aussie lawyers to get them to run to the rescue!

 

Cheers

 

Gill

[Gollywobbler]

Hi again

 

One of the important factors, I believe, is whether Mum should be advised to apply for a Contributory Aged Parent visa subclass 864 or whether she should simply apply for a non-contributory Aged Parent visa subclass 804 instead.

 

Technically, which visa does not make any difference. However, if the option of choosing is available financially then I would want some legal advice about this and I would get it either from George Lombard or from Nigel Dobbie. My own preferences are such that I would not consult anybody else.

 

I would want to ask one of them (and probably both of them) whether they think the choice of visa would have a subliminal effect on the Minister? Technically, he shouldn't be influenced but the Minister is only a human bean and he is an elected pollie at that! I'd expect a Judge to ignore his own personal, private sentiments but I wouldn't expect a pollie to do so.

 

I think the advantages of a Contributory Aged Parent visa are twofold. First of all, they are phenomenally expensive - Contributory Parent and Contributory Aged Parent visas are by far the two most expensive visas for Oz. To apply for CAPVs for your mother and your sister would cost about £50,000 GBP, roughly, at today's exchange rates. So if one could afford to apply for 2 CAPVs, it does make it clear to the Minister that one is not asking Australia to provide something for free. The whole idea is that the visa applicant is making a hefty Contribution towards his/her future medical and/or community care needs in Oz, so there might be a tactical advantage - albeit subliminal - in using a CAPV if possible.

 

The other advantage is the Assurance of Support. With a CPV or a CAPV, it lasts for 10 years and would be backed up by a deposit of $14,000 AUD for Mum & Sister together, which is held in a special account at the Commonwealth Bank of Australia. With non-contributory Parent migration, the AoS only lasts for 2 years.

 

Your sister might become eligible to receive a Disability Support Pension once she had lived in Oz for 10 years:

 

http://www.centrelink.gov.au/internet/internet.nsf/payments/disability_support.htm

 

10 years is a lengthy exclusion period but most people can get round it because someone who will become eligible for DSP might become eligible to receive Special Benefit instead after only 2 years in Oz:

http://www.centrelink.gov.au/internet/internet.nsf/payments/special_benefit.htm

 

Now, if a non-contributory Parent visa were to be sought and granted by the Minister, your sister might become eligible for SB sooner than she would become eligible for DSP.

 

To a large extent, this is negated by using Contributory Parent migration instead because if she sought SB after 2 years, the full amount paid out by Centrelink would be a recoverable Benefit under the AoS scheme:

http://www.centrelink.gov.au/internet/internet.nsf/factors/assurance_support.htm

 

Centrelink would be able to recover the full $14,000 in the Bond Account and if that were not enough to repay them for moneys they pay in SB between Years 2 to 10, Centrelink have the power to chase the Assurer(s) of Support personally in order to recover any shortfall.

 

According to PIC 4005, the MOC and the Minister must disregard any factors such as the visa applicant being able to afford private medical insurance or being able to afford to pay privately for Care in the Community. It is all very well for the visa applicant to promise this sort of thing in order to get the visa but the Government has no legal teeth if he later changes his mind or cannot afford the private assistance. The Government could end up with the bill, so the only fair way to deal with this is to say that there is likely to be "significant cost" regardless of whether public money would actually be used.

 

Well & good. We know what the legislation says. However when he was the Minister for Immi, Senator Evans told the Senate Estimates Committee that in cases of Ministerial Intervention, he personally was swayed by whether or not there would be enough money that there would not be any recourse to the public purse. Dr Moeller had set up an elaborate Trust Fund that would ensure that young Lukas would be well cared for financially even if Dr & Mrs Moeller both dropped dead prematurely. Dr & Mrs Downes did the same thing with their own autistic son.

 

So the Minister is definitely swayed by subjective factors, it seems (at least, Senator Evans admitted that he was.) I don't know how Minister Bowen would react - so far he has been exceedingly coy with the Senate Estimates Committee and has not turned up for any of their Hearings. So - would Bowen be swayed by the tactics employed?

 

Officially, one doesn't know. Unofficially, people like Nigel and George hear all the gossip on the legal profession's jungle drums, which tend to be extremely industrious and talkative drums, in my experience of the legal profession in the UK!

 

Therefore I would want to chew the cud with a couple of Aussie lawyers in order to decide what the best tactics would be, if your Mum can afford to play a tactical game, here. Aussie lawyers who specialise in getting Aussie visas would be an invaluable source of advice about this provided that they are the very best in their own field - which Nigel and George both are, without doubt.

 

If one is not going to use the very best lawyers then there is little or no point in using third party lawyers at all, in my view.

 

Cheers

 

Gill

[Guest karyn1]

Hi again

 

One of the important factors, I believe, is whether Mum should be advised to apply for a Contributory Aged Parent visa subclass 864 or whether she should simply apply for a non-contributory Aged Parent visa subclass 804 instead.

 

Technically, which visa does not make any difference. However, if the option of choosing is available financially then I would want some legal advice about this and I would get it either from George Lombard or from Nigel Dobbie. My own preferences are such that I would not consult anybody else.

 

I would want to ask one of them (and probably both of them) whether they think the choice of visa would have a subliminal effect on the Minister? Technically, he shouldn't be influenced but the Minister is only a human bean and he is an elected pollie at that! I'd expect a Judge to ignore his own personal, private sentiments but I wouldn't expect a pollie to do so.

 

 

 

I think the advantages of a Contributory Aged Parent visa are twofold. First of all, they are phenomenally expensive - Contributory Parent and Contributory Aged Parent visas are by far the two most expensive visas for Oz. To apply for CAPVs for your mother and your sister would cost about £50,000 GBP, roughly, at today's exchange rates. So if one could afford to apply for 2 CAPVs, it does make it clear to the Minister that one is not asking Australia to provide something for free. The whole idea is that the visa applicant is making a hefty Contribution towards his/her future medical and/or community care needs in Oz, so there might be a tactical advantage - albeit subliminal - in using a CAPV if possible.

 

The other advantage is the Assurance of Support. With a CPV or a CAPV, it lasts for 10 years and would be backed up by a deposit of $14,000 AUD for Mum & Sister together, which is held in a special account at the Commonwealth Bank of Australia. With non-contributory Parent migration, the AoS only lasts for 2 years.

 

Your sister might become eligible to receive a Disability Support Pension once she had lived in Oz for 10 years:

 

http://www.centrelink.gov.au/internet/internet.nsf/payments/disability_support.htm

 

10 years is a lengthy exclusion period but most people can get round it because someone who will become eligible for DSP might become eligible to receive Special Benefit instead after only 2 years in Oz:

http://www.centrelink.gov.au/internet/internet.nsf/payments/special_benefit.htm

 

Now, if a non-contributory Parent visa were to be sought and granted by the Minister, your sister might become eligible for SB sooner than she would become eligible for DSP.

 

To a large extent, this is negated by using Contributory Parent migration instead because if she sought SB after 2 years, the full amount paid out by Centrelink would be a recoverable Benefit under the AoS scheme:

http://www.centrelink.gov.au/internet/internet.nsf/factors/assurance_support.htm

 

Centrelink would be able to recover the full $14,000 in the Bond Account and if that were not enough to repay them for moneys they pay in SB between Years 2 to 10, Centrelink have the power to chase the Assurer(s) of Support personally in order to recover any shortfall.

 

According to PIC 4005, the MOC and the Minister must disregard any factors such as the visa applicant being able to afford private medical insurance or being able to afford to pay privately for Care in the Community. It is all very well for the visa applicant to promise this sort of thing in order to get the visa but the Government has no legal teeth if he later changes his mind or cannot afford the private assistance. The Government could end up with the bill, so the only fair way to deal with this is to say that there is likely to be "significant cost" regardless of whether public money would actually be used.

 

Well & good. We know what the legislation says. However when he was the Minister for Immi, Senator Evans told the Senate Estimates Committee that in cases of Ministerial Intervention, he personally was swayed by whether or not there would be enough money that there would not be any recourse to the public purse. Dr Moeller had set up an elaborate Trust Fund that would ensure that young Lukas would be well cared for financially even if Dr & Mrs Moeller both dropped dead prematurely. Dr & Mrs Downes did the same thing with their own autistic son.

 

So the Minister is definitely swayed by subjective factors, it seems (at least, Senator Evans admitted that he was.) I don't know how Minister Bowen would react - so far he has been exceedingly coy with the Senate Estimates Committee and has not turned up for any of their Hearings. So - would Bowen be swayed by the tactics employed?

 

Officially, one doesn't know. Unofficially, people like Nigel and George hear all the gossip on the legal profession's jungle drums, which tend to be extremely industrious and talkative drums, in my experience of the legal profession in the UK!

 

Therefore I would want to chew the cud with a couple of Aussie lawyers in order to decide what the best tactics would be, if your Mum can afford to play a tactical game, here. Aussie lawyers who specialise in getting Aussie visas would be an invaluable source of advice about this provided that they are the very best in their own field - which Nigel and George both are, without doubt.

 

If one is not going to use the very best lawyers then there is little or no point in using third party lawyers at all, in my view.

 

Cheers

 

Gill

 

OMG! This is the reason these sites are set up! Gill, your a star:cute: Reading these kind of posts make me smile!