Gollywobbler Please Help - Immigration issue - family and a case of Cystic Fibrosis.

[Guest Najia Nazir]

I am a mother of 3 from Karachi Pakistan. I would like to inquire about the migration policy regarding children with genetic disorders. One of my sons has cystic fibrosis which is not an environmentally threatening disorder and he acquired it as his parents are first cousins. What are our family's chances of making it thru the medical procedures without getting halted for this particular reason?

 

My primary focus to opt for Australia is to seek better and improved environment for my child , along with state of the art medical facilities. Will my focus prove to be detrimental or helpful to my yet-to-be-lodged application?

 

I wish to apply under State Sponsored Migration List (SSML) ( 2011-2012 program year) for Skilled - Sponsored (Migrant) visa (subclass 176)

 

Both my husband's and my professions belong to the ' High Availability' green zone , according to

http://www.immigration.sa.gov.au/app...vel_status.php

 

Hence , I wanted some guidance regarding this. I have been suggested a ' Medical Disclaimer'? What exactly is that?

 

My son is very agile and keeps fit despite his shortcomings of being born with a problem. He is a high achiever in his academics and extremely creative and artistic for a boy of five years.

 

Our other two kids have absolutely no medical issues and so do we, the married couple.

 

My husband has 13 years of professional experience a senior Accountant , while I have been in my profession of ELT for more than 9 years.

Do you think our professional expertise might help clear some clouds?

 

When you say agents, could we have some suggestion regarding this? How much cost will we have to pay?

 

If we would like to attend to our application , independently of any agents, is there any chance?

 

I want to have this information asap , as after we go for a VETASSESS and CPA assessment and pay for our visa fee process, only after we would be able to have a medical check . If we are disqualified at that stage, the news will be too formidable for us to bear!

 

I would like to file for the process before 1st July , as after that, I understand, some occupations might be closed .

 

Thanks

 

 

[Guest James]

I am sad to say and I do not agree with it but if if is considered above a very monir level of disability you are unlikely to pass the medicals for permanent residence, you may get short term.

 

Hope that helps

[Gollywobbler]

I am a mother of 3 from Karachi Pakistan. I would like to inquire about the migration policy regarding children with genetic disorders. One of my sons has cystic fibrosis which is not an environmentally threatening disorder and he acquired it as his parents are first cousins. What are our family's chances of making it thru the medical procedures without getting halted for this particular reason?

 

My primary focus to opt for Australia is to seek better and improved environment for my child , along with state of the art medical facilities. Will my focus prove to be detrimental or helpful to my yet-to-be-lodged application?

 

I wish to apply under State Sponsored Migration List (SSML) ( 2011-2012 program year) for Skilled - Sponsored (Migrant) visa (subclass 176)

 

Both my husband's and my professions belong to the ' High Availability' green zone , according to

http://www.immigration.sa.gov.au/app...vel_status.php

 

Hence , I wanted some guidance regarding this. I have been suggested a ' Medical Disclaimer'? What exactly is that?

 

My son is very agile and keeps fit despite his shortcomings of being born with a problem. He is a high achiever in his academics and extremely creative and artistic for a boy of five years.

 

Our other two kids have absolutely no medical issues and so do we, the married couple.

 

My husband has 13 years of professional experience a senior Accountant , while I have been in my profession of ELT for more than 9 years.

Do you think our professional expertise might help clear some clouds?

 

When you say agents, could we have some suggestion regarding this? How much cost will we have to pay?

 

If we would like to attend to our application , independently of any agents, is there any chance?

 

I want to have this information asap , as after we go for a VETASSESS and CPA assessment and pay for our visa fee process, only after we would be able to have a medical check . If we are disqualified at that stage, the news will be too formidable for us to bear!

 

I would like to file for the process before 1st July , as after that, I understand, some occupations might be closed .

 

Thanks

 

 

 

Hi Najia

 

Thanks for your query.

 

Unless you are prepared to do LOADS of research on your own - and make sure that you get that right - I think it would probably be easier if you get a Registered Migration Agent either to handle the whole of the sc 176 application for you or at least get an RMA to handle the Health requirement part of it for you.

 

No law says that you can't instruct an RMA to do nothing except deal with the Health requirement for your son alone. That bit depends on finding an RMA who is willing to accept such a limited scope to his/her instructions.

 

The RMA whom I would choose in your shoes is George Lombard in Sydney:

 

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

 

I don't know how much his fees would be and I don't know whether he would be prepared to accept very limited instructions only.

 

If you do the whole thing on your own then the following information is crucial:-

 

1. The relevant Health requirement for a sc 176 visa is Public Interest Criterion 4005. There is no possibility of a Waiver of the strict wording and provisions of PIC 4005.

 

2. The issue between yourselves and DIAC would be whether your son's medical condition would be likely to result in "significant cost" to the Aussie Public Purse. This can be direct medical costs for monitoring his condition etc but it can also include the costs of "community services." These community services can be the show-stopper in visa terms because one example would be the costs if your son needs any special help at school. If he needs such help, it is expensive to provide it because the relevant Education Department can be required to pay for a special assistant to attend to him whilst he is at school.

 

Another possibility is that when he grows up, he might not be able to live completely independently, might not be able to get an "ordinary job" that does not involve any notion of 'sheltered employment' etc. (Sheltered employment is really only occupational therapy for the people who need it. Superficially they appear to be doing something useful but the reality is that it costs the Government a fortune to pay the specialist carers/supervisors who look after them whilst they are doing something useful. With normal employment, the objective is that the employer will make a taxable profit as a result of the normal employment and the employee will pay tax on his wages. With sheltered employment, the employees are often in receipt of Disability Support Pension, someone might be able to claim a Carer's Allowance for looking after them whilst they are at home, the State might be paying all or part of the sheltered employee's rent and so forth, so the Government actually subsidises the cost of providing sheltered employment pretty heavily, ergo it leads to a large cost with no profits involved. Nonetheless, it fits the "social model" of Disability - which is that a disabled person can usually do something useful and so he should be allowed to stay in the community and do whatever he is cabable of doing, regardless of cost.)

 

3. This term "significant cost" is not defined in the migration legislation. However the Suits decided in about 1999 that the threshold figure should be $21,000 AUD or more over the visa applicant's first 5 years in Australia if the applicant is aged under 75 and PIC 4005 applies to the visa s/he has sought. (If the visa applicant is 75 or over - eg an applicant for a Parent visa - then "significant cost" is deemed to mean $21,000 or more during the person's first 3 years in Australia.)

 

Two important developments have occurred since 2008:-

 

A. In May 2009, DIAC told the Senate Estimates Committee that they think this $21,000 threshold is too low nowadays. DIAC said they believed that it should be increased to $100,000 over the visa applican's first 5 (or 3) years in Oz. In May 2009, the Minister for Immigration was Senator Chris Evans. DIAC told the Estimates Committee that they thought Senator Evans would agree to increasing the threshold to $100K but DIAC needed to hear from "other Government Departments" about the proposed increase before they could recommend it to the Minister. This is all recorded in the Hansard Transcript of the Senate Estimates Committee hearing in May 2009.

 

B. In Nov 2008, Senator Evans and the Minister for Disability jointly asked the Joint Standing Committee on Migration to investigate the Migration Treatment of Disability:

 

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

 

At a Public Hearing in Canberra in March 2010, the JSCM asked DIAC what was happening about increasing the threshold figure for PIC 4005? DIAC said that they were still waiting to hear from other Government Departments but they did not indicate which other Departments or how much longer the deliberations between officials is likely to take.

 

An RMA friend of mine asked DIAC about this informally in the middle of 2011. They said that they were still not in a position to be able to recommend that the Minister for Immi should increase the threshold and confirmed that it still remains at $21,000 AUD, as described above. Again, DIAC did not indicate how much longer is is all likely to take.

 

You should scour - and I mean scour - some of the Submissions to the JSCM (particularly DIAC's own Submission at #66.) You should also read at least the 2 Hansard Transcripts of the Public Hearings in Canberra in Feb and March 2010. The main witness at both of those Hearings was Dr Paul Douglas, who is the Chief Medical Officer of the Commonwealth. He is the immediate boss of all the MOC doctors and Dr Douglas is known as the CMO.

 

The CMO gets his own orders from Mr Matt Kennedy, who is the Head of DIAC's Health Policy Section. Peter Vardos is DIAC's overall Head of Policy, so Mr Vardos is Mr Kennedy's boss.

 

Eventually in June 2010, the JSCM produced the Enabling Australia Report. That recommends that the Government of Australia needs to change its whole attitude with regard to the Migration Treatment of Disabled Persons in particular and with regard to the Health requirement for migration generally. As of today, there has been no official Government Response to the Enabling Australia Report.

 

.......[to be continued in my next post.]

[Gollywobbler]

George Lombard is one of very few RMAs who is genuinely deeply interested in the Health requirement and he is particularly good when a child is involved. George knows all about the JSCM Inquiry etc. The JSCM recommend changing the relevant Law completely. Apparently the JSCM are very influential and their recommendations are usually followed. I asked George how long it is all likely to take? He said, "At least 5 years and quite likely considerably longer if DIAC decide to make difficulties about it."

 

Having seen how long DIAC have been taking over the purely administrative issue of increasing the "significant cost" threshold figure, I don't think you and I should be holding our breaths about how long they might take to react to a kick up the jaxi from the JSCM!

 

It was impossible for the JSCM to single out "Disability" and to treat that differently from a disease because for migration purposes, Australia still relies on the "medical model" of Disability. The idea of the "medical model" is that it doesn't matter whether the problem is a Disability or a Disease. It is still going to cost money to the Public Purse one way or another.

 

The JSCM had the Great & Good breathing down its neck! The Law Institute of Victoria were particularly vociferous. The Royal Australasian College of Physicians (rumoured to despise DIAC) pointed out that the main carers of someone with a disability are usually members of his/her close family and that this does not usually cost the Government anything. The Human Rights lawyers turned out in force to argue that the Aussie Migration Treatment of Disability contravenes both the spirit and the wording of the UN's Convention on the Rights of Persons with a Disability (known as the CRPD.) However the law allows Australia to discriminate against prospective immigrants in this way, though the JSCM said strongly that as a matter of public policy, Australia should stop doing so.

 

All that said, the Chairman of the JSCM pointed out that lots of us can wish for lots of things but it is the Aussie Tax-payer who will get the bill for the costs if Australia decides to Enable itself! I think he is right. The average Aussie knows nothing about Immigration, imagines that Immigration = Boat People and certainly doesn't want to have to foot the bill for any increases in the costs of Immigration. The tax-paying Aussie Voter thinks the costs are already far too high and the Politicians have to appease the Voters if they want to be re-elected in 2013!

 

That's enough for this first reply to you.

 

Cheers

 

Gill

[Gollywobbler]

Hi again, Najia

 

I'm a lawyer, not a doctor. I've only got a vague idea about what cystic fibrosis really is. As far as I know, it would normally count as a "disability" rather than a "disease" but I am by no means certain about this. It could be that it is a "disability" but there can be medical problems for the patient as well - I don't know and you would need to ask a doctor in order to be certain about any of this - which you have probably already done. I'm certain that you know much more about cystic fibrosis than I do.

 

I've tried to search AustLii to find some MRT cases or Court cases that have involved a visa applicant with cystic fibrosis. I've even tried calling it muscovidiscosis or whatever (I got the word from Wiki) but AustLii keeps saying zero results.

 

http://www.austlii.edu.au/form/search/search1.html

 

I don't believe that. Either your child's condition has never resulted in an appeal to the MRT or I am using the wrong keywords and the MOC calls the condition something else, or AustLii is not working fully because it is the weekend and the IT guys might be doing maintenance work to Austlii. Try again on Monday and see whether you can get some sense out of AustLii, I would suggest.

 

Confine it to a search in the Migration Review Tribunal only. The earlier, Immigation Review Tribunal, was closed in about 1999 so anything in that is too old to be trustworthy nowadays.

 

Ideally, you want to find some relevant MRT cases that were decided after November 2005 and where thecase report cites Robinson v MIMIA, which became the leading court case about PIC 4005 when it was decided in Nov 2005. The MRT is bound by decisions in the Courts but it is not bound by the results decided in another MRT. However none of the important court cases have involved cystic fibrosis, so anything that is directly relevant has happened in the MRT only.

 

You can see that it all becomes extremely complicated (even for me, a lawyer by trade.) I am only qualified in England & Wales. I'm not qualified in Australia as well and I've only got a vague idea about how the Aussie legal system works. A vague idea is not good enough when one is in the same position as you, which is why I never claim to be a migration agent, even though I am in the UK so I could set myself up doing Aussie visas if I wanted to.

 

George Lombard is also not a legal practitioner in Oz but he has a degree in Australian Law, he thinks in the same way as any legal practitioner and he is every bit as good at it as an Aussie legal practitioner. The fact that he is technically only an RMA is irrelevant in his case though it is an alarming fact with some of his RMA competitors, who can fill out forms but haven't any sort of a real clue about Australian Law.

 

If you decide to consult George, he's a lawyer, not a doctor. However a GP works with him part time and obviously she can understand all the medical reports etc relating to your son. With one of them understanding the Law in great depth and the other one understanding the medical aspects properly, together George and the GP are a very strong team, plus they know which specialist doctor in Sydney to approach for an Opinion. They don't just guess at it vaguely!

 

One of the possibilities in your position is not to apply for a sc 176 visa. Presumably the intention is that one of the State Governments will sponsor either you or Hubby for the sc 176 visa? The problem with that is that although a State Government is capable of being the front man in an Appeal to the MRT - legally it is possible - in practice the State Governments ALL refuse to get involved with MRT appeals where the problem is that one of the visa applicants has a medical condition. So what that means is that if your application is refused on medical grounds because of your son's condition, you will not be able to appeal to the MRT, which in turn means that you can't complain formally in any other way either.

 

So legally, the strongest way to do this is to get an employer-sponsored subclass 457 visa first. Use that to go to Australia. Once you are in Oz, the employer sponsors you either for an onshore ENS visa or an onshore RSMS visa. In this situation, the Health State Waiver kicks in. Under the State Health Waiver, if the MOC reckons that it would cost between $21,000 and $100,000 to provide the necessary help for your son, the State agrees to bear the theoretical costs and the MOC is then happy. This is already Law, following the case of Dr Moeller in 2008.

 

However, it might not be possible to find an employer-sponsor who would be willing to co-operate with the visa strategy and it might not be necessary in any case if your son's medical condition would not take him above the $21,000 threshold, there is nothing to worry about anyway.

 

Therefore I think that someone in your situation should consult an RMA (and I would recommend George Lombard for this) because it is not realistic to expect the lay visa applicant to become a medical and a legal expert rolled into one! It would be far easier if you, George and his GP all joined forces. You are important - you know the child and in your shoes, I would not allow so-called visa experts to hijack my child, in effect. The child is not a walking Medical Condition, no matter what anyone else thinks. He is a whole child who just happens to have a medical condition - which is not the same thing.

 

Above all, though, consult a Panel Doctor. The PD's job is only to report his/her findings to the MOC. The PD is not involved in making the decision. However the experienced PDs usually have a pretty shrewd idea of when the MOC is likely to make difficulties and when that is not likely to happen. It is nonsense to say that lawyers alone can provide all the necessary advice. It needs lawyers and doctors working together if possible.

 

Cheers

 

Gill

[Guest Fina]

Hello Gollywobbler,

 

I've been reading your posts with great interests, especially those with reference to sponsoring a disabled relative (Severe Down Syndrome).

 

You mentioned 2 great RMAs, ie. George Lombard and Nigel Dobbie. I notice they both reside in NSW. Are you able to recommend as good ones in Melbourne?

 

Many thanks in advance,

Fina

[Gollywobbler]

Hello Gollywobbler,

 

I've been reading your posts with great interests, especially those with reference to sponsoring a disabled relative (Severe Down Syndrome).

 

You mentioned 2 great RMAs, ie. George Lombard and Nigel Dobbie. I notice they both reside in NSW. Are you able to recommend as good ones in Melbourne?

 

Many thanks in advance,

Fina

 

Hi Fina

 

In Melbourne, I have heard of a solicitor/RMA called Maria Jockel but I know almost nothing about her:

 

http://www.holdingredlich.com.au/maria-jockel

 

That said, if somebody has severe Down Syndrome then at the moment it is very, very unlikely that they would be accepted for migration to Australia. One does not need to pay Maria Jockel's fees in order to know this fact and she would not be able to do anything that would prevent a visa refusal in the case of someone with severe Down Syndrome, unfortunately.

 

In theory, the Partner or the Parent of the person with Down Syndrome would be able to get a sc 457 Temporary Visa to start with. Once in Australia, the working member of the family would then be able to obtain the ONSHORE version of one of the employer-sponsored PR visas. If things are done in this order then the 'State Health Waiver' kicks in.

 

The State Health Waiver would permit DIAC to grant a PR to the person with Down Syndrome AS LONG AS the Medical Officer of the Commonwealth has confirmed that the total bill for strictly medical costs plus "community care" costs - which is the bill payable by Centrelink for providing Social Security Benefits such as Special Benefit to begin with followed by Disability Support Pension would not exceed $200,000 AUD in total.

 

In practice, the MOC is certain to say that the likely Social Security Benefits costs will exceed $200,000 when calculated over the duration of the disabled person's expected future life span. In practice, the MOC is likely to estimate a figure of between $1 mllion and $3 million, which would ensure that DIAC would refuse the PR visas for the whole family.

 

The family would then have to make an Appeal to the Migration Review Tribunal - which would almost certainly be likely to fail. If - and only if - there has been an unsuccessful appeal to the MRT, then (but not before) it is possible to seek Ministerial Intervention under S351 of the Migration Act 1958.

 

S351 says that the Minister for Immigration [acting in his sole discretion] has the power to "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.

 

The lawyers acting for Dr Moeller were first rate tacticians. They got the media to inflame public sentiment to such an extent that the Public absolutely roared at the Minister for Immi and told him in no uncertain terms that it would be "in the public interest" for him to grant visas to Dr Moeller and his family, including to Dr Moeller's son Lukas, who has severe Down Syndrome. Young Lukas Moeller was about 14 at the time. Indeed, the Public made it clear to the Minister that it would not be in the public interest for him to do anything other than to obey the Public about this. The media campaign was brilliantly well-managed and it worked. The Minister granted the visas without any further arguments and he made the grant on the same day as the application for Ministerial Intervention was lodged.

 

However, Dr Moeller was extremely wealthy in his own right and a Trust Fund had been established which would provide for Lukas more than amply if anything happened to Dr Moeller and/or to his wife. The Minister for Immi was Senator Evans at the time. He was entitled to pay heed to the existence of the Trust Fund, even though no other part of the Migration legal process is allowed to take that factor into account.

 

http://news.sky.com/home/world-news/article/15139808

 

http://www.medindia.net/news/Sons-Down-Syndrome-Ignored-German-Doctor-Gets-Permanent-Residency-In-Australia-44496-1.htm

 

Some of the other media reports said that unless Dr Moeller stayed in Horsham, Wimmera Hospital would not have been able to look after acutely ill patients locally and the patients would have had to have been flown to Melbourne if Dr Moeller had not been available locally, so I think Dr Moeller may be an expert on resuscitation medicine who would usually be found in the Intensive Care Unit in a major city.

 

Dr Moeller was granted his PR in the end but he was so angry and upset about the whole thing that he left Horsham anyway. He and his family emigrated to the USA in late 2009 or early 2010.

 

Dr Moeller was also not short of money. His legal fees must have been astronomical and he was clearly using top-notch lawyers, whose fees would have been far higher than an ordinary person would be likely to be able to pay. Also, Dr Moeller had already established a very large Trust Fund for Lukas, so that if anything happened to Dr Moeller and/or his wife, the Trust Fund was more than enough to ensure that private nurses would be able to look after Lukas for the rest of Lukas' life.

 

The Migration legislation ignores the possibility of a Trust Fund and is not able to take the existence of such a Fund into account. It was taken into acount in Dr Moeller's case but that was ONLY because Senator Evans granted the visa himself. He went on to tell the Senate Estimates Committee (in May 2009) that in reaching his decision about Dr Moeller's family, he (Senator Evans) had been swayed by the existence of the Trust Fund. The Minister was the only person in Australia to have the legal power to consider the existence of the Trust Fund.

 

Since the Dr Moeller case, another couple of doctors have been able to use similar arguments to get PR in spite of their own children's disabilities.

 

However, one needs to be something like a doctor or a nurse in order to be able to command the attention and co-operation of the media in the way that happened with Dr Moeller. A doctor might save your or my life. That is the fact that gives medical practitioners their media-appeal.

 

Also, since Dr Moeller's case DIAC have changed their own tactics with sc 457 visas. They now insist on being provided with an Employers Health Undertaking pursuant to PIC 4006A of the Migration Regulations at the time when the sc 457 visa is sought. Most Australian employers refuse to provide a PIC 4006A Undertaking, so the sc 457 visa application is refused and the problem doesn't have a chance to get as far as Australian soil.

 

Maria Jockel can doubtless do many things but she cannot make rain and she cannot insist that an Australian employer must provide a PIC 4006A undertaking, my friend. So by all means consult her but do not hold your breath, I suggest, because her advice is likely to be as pessimistic as mine, for the same reasons.

 

Sorting this out really depends on the Government agreeing to adopt all of the recommendations in the Enabling Australia Report, which was tabled in Parliament in June 2010.

 

http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=mig/disability/report.htm

 

The Enabling Australia Report was written by the Joint Standing Committee on Migration following a wide-ranging Public Inquiry during 2009/2010. Partly, the Inquiry was established because of all the fuss about Dr Moeller in 2008. The drill is that we are now waiting for the formal Government Response to the Enabling Australia Report but so far, I haven't heard any birdies tweeting that the Response is due to be tabled any time soon.

 

There has to be a General Election in Australia during 2013. The Government may well want to avoid anything to do with Immigration forming part of an Election campaign. Australian Voters blame the Gillard Government for all the problems associated with the boat people so I shouldn't think that she'll want them grumbling about any other aspects of her Immigration policy on top.

 

I'm sorry to be so pessimistic but I don't think I'd be doing you any favours if I didn't tell you the truth, honey.

 

Gill

[Gollywobbler]

Hi Fina

 

This might sound daft but I promise you that I am not bonkers!

 

According to your posts, you are a new member of Poms in Adelaide and you have made 3 posts on the public forums up to now. The usual set-up with these internet forums is that a new member has to make 5 public posts before s.he can access the Private Message system. This is so that the Moderators can read the 5 public posts and if the newbie is a spammer who is trying to sell shoes, handbags etc then the newbie can be banned from the forum.

 

A different breed of spammers get hold of the Private Message system if they get half a chance. I've had numerous spam PMs on various internet forums, assuring me that The End Is Nigh and the usual rubbish. I am not the sort of person who feels intimidated by this sort of nonsense so I just delete the spam PM and forget it but other people are intimidated by this sort of thing. The spammers who send the quasi-religious PMs never post anything on the public boards so the Moderators and Site Admin don't discover their existence until ordinary (usually new) members start new threads saying, "I have had a strange PM and I don't know what to make of it."

 

So that is the background.

 

I have sent you a Private Message, giving you my private e-mail address and inviting you to contact me by e-mail. The public message boards are not the right place to try to help with your family's private affairs.

 

If you can read the PM that I have sent you then fine. If you cannot access it, can you please put two more posts on this thread even if they are rubbish? EG, the first rubbish post could say, "Jack & Jill went up the hill" and the second one could say, "Humpty Dumpty sat on the wall."

 

We can ask the Moderators to sort that out later but I am not prepared to put my private e-mail address on the public forum. I'm not a migration agent so I don't have any reason to share my private information with the whole world!

 

So, to recap. If you can read your PMs then please e-mail me privately. If you can't access your PMs yet, please write rubbish in two more public posts.

 

Thanks

 

Gill

[Guest Fina]

No problem Gill. I've replied to your private messages. Hopefully you receive them.

 

thank you very much for your warning.