PomsInOz Forum - View Single Post - Doctor refused PR Visa because his son has Downs

**Gollywobbler** · 17-11-2008, 12:57 AM

Hi Tom

Be in no doubt. Potentially the issues facing your parents would be immense because it takes a long time to break the barriers down in cases like these.

The background to all this, in simple terms, is as follows:

Because of the way the Aussie migration legislation is worded, for many years solicitors in Oz believed that is was not possible to challenge the Opinion of the Medical Officer of the Commonwealth about whether or not someone meets the Health Requirement for migration to Oz. It was believed that there was no legal machinery via which the MOC could be challenged, in effect.

The Health Requirement which causes all the hassle is Public Interest Criterion 4005 in the Migration Regulations 1994. I won't quote it at length here because it is quite lengthy and one is limited to 8,000 characters in a post.

In 2001 there was litigation against the Minister for Immi in a case called Blair. The child at the centre of the case was a boy of about 10 with Down Syndrome. I'm a lawyer (but not Australian qualified) so I am used to reading reports of Court cases. The litigation in Blair was a hopeless attempt, in my view, because the wording of PIC 4005 never has supported what they were trying to say. However, the family were immensely wealthy and so they made what I think was a futile application to the Court.

I'm not a medic so I have no idea about the medical evidence in Blair. From the sound of it, the child was actually pretty severely disabled by Down Syndrome. It was common ground between the parties that the child would never be able to lead a normal life when he grew up. Therefore if he had been allowed to migrate permanently he would undoubtedly have become eligible for the top whack, I suspect, of Australia's Disability Support Pension:

Disability Support Pension

The family tried to argue that a large Trust fund had been set up for the child so he would never need to work anyway, plus he would be so wealthy that he would not qualify for DSP because it is means-tested in Oz (unlike in the UK) unless the applicant is "permanently blind" which the Blair child was not. Therefore they tried to say that potential eligibility for DSP and all the ancillary Benefits that would flow from it were irrelevant because they would never be claimed. They argued that there would be no cost to Medicare either, because they could plainly afford the finest medical attention that money can buy.

I think the family's argument was specious because that is not how PIC 4005 works. 4005 brings it down to the lowest common denominator: the visa applicant has no money and therefore would need the help of the State one way or another, to a degree which would be a "significant cost" to the Aussie tax-payer. Permanent Residency in Oz is a package deal: with it comes an automatic right to Medicare and an automatic right to be given State Benefits if necessary. The Australian Govt has always maintained the stance that if you migrate to Oz then you get the full package and it is not possible to contract out of bits and pieces of it because that would create a two tier society. It would enable positive discrimination in favour of the wealthy and I completely agree that that is not on. Hence I am convinced that it was futile litigation.

After Blair there followed a string of Court cases, all trying to argue different bits of the coin. Some of the legal fictions invented by the Judges in some of them were just plain strange, too, but they are now largely irrelevant because of Robinson in 2005.

I think the DIAC legal team and the MOC between them completely misunderstood the ratio decidendi in Blair. They appear to have thought that Blair had provided a legal authority for the proposition that medical cases can be decided on the basis of generic information about the condition itself (often 20 years out of date information at that) rather than deciding them on the basis of the specific medical condition of the specific visa applicant in question. Nothing in the Blair judgement even mentions the notion so I simply fail to understand how DIAC & the MOC could have misunderstood the judgement so completely - but they appear to have managed to do so.

Therefore the MOC appears to have thought that a case of Down Syndrome would automatically lead to a visa refusal because of the decision in Blair, when this is not what Blair decided at all. Not by any stretch of the imagination. I think Blair probably was correctly decided on its own facts because it does seem that the child was severely affected by Downs.

FFWD to 2004 & 2005 and the Robinson case. Again, it concerned a boy who was about 10 when the Court dealt with it in November 2005. Mrs Robinson is a midwife in Perth. The crux of Robinson and the reason why it has become the new milestone is that the child is not severely affected by Downs. Master Robinson only has a mild degree of disability and therefore there is no reason to suppose that he will not be able to lead a normal life once he grows up. The litigation forced the Minister for Immi to accept that every single one of the cases involving a medical condition must be determined on its own facts alone and not according to any vague, generic criteria about the condition.

That said, the MOC doctors continue to make unforgiveable mistakes, as happened to one of our PiO members earlier this year. They are overworked, underpaid GPs employed by the civil service and why on earth any of them prefer to spend all day long pushing a pen instead of prodding a patient is completely beyond me. I simply cannot understand why one would go to all the hassle of becoming a doctor if one does not want to help a sick person. I thought that was the whole purpose of Medicine, but still....

I don't think it is possible to say that Dr Moeller's case will have the same outcome as Robinson has now (finally) had. The whole world knows that Dr Moeller's son has Down Syndrome but there has been no publicity about the severity of the child's condition. Similarly Dr Downes in Sydney has revealed nothing publlcly about the severity of his own child's condition, which I am pretty sure is an austistic spectrum disorder completely unrelated to Down Syndrome, but the principles established in Robinson apply regardless of what the actual medical condition might be.

And "permanent blindness" will always be the exception to the rule anyway because of the fact that that condition is the only one which gives an automatic entitlement to the full rate of Disability Support Pension without any sort of means-testing. Nobody should be in any doubt about this.

I think it is brilliant that Senator Evans has enough commonsense to realise that the situation with these cases cannot continue to lurch along as it currently does. (Personally I think that he is the best thing that has ever happened to the Australian Immigration system, but doubtless many people would disgree with my view.)

However I do think that any significant changes are likely to be a long time in coming. I also think that the child cases which also involve parents in the medical profession will lead the change because the doctors like Dr Downes and Dr Moeller - regardless of the sorts of conditions that they treat in their own working lives - will undoubtedly see to it that the MOC is prevented from relying from vague assumptions - often hopelessly out of date ones - about specific medical conditions in the future. And I would hope that both doctors will give the Minister severe earache. Plus both doctors have hospitals etc backing them to the hilt about the medical details. Mrs Robinson has had that as well.

So I think the medical profession will lead the way in getting the present muddle resolved but I do think it will take time. I reckon 5 - 10 years, probably.

Best wishes

Gill

17-11-2008, 12:57 AM	#10 (permalink)
Gollywobbler has no status. Moderator Join Date: May 2006 Location: Southampton, UK Posts: 10,699 Thanks: 8,134 Thanked 5,855 Times in 2,416 Posts	Hi Tom Be in no doubt. Potentially the issues facing your parents would be immense because it takes a long time to break the barriers down in cases like these. The background to all this, in simple terms, is as follows: Because of the way the Aussie migration legislation is worded, for many years solicitors in Oz believed that is was not possible to challenge the Opinion of the Medical Officer of the Commonwealth about whether or not someone meets the Health Requirement for migration to Oz. It was believed that there was no legal machinery via which the MOC could be challenged, in effect. The Health Requirement which causes all the hassle is Public Interest Criterion 4005 in the Migration Regulations 1994. I won't quote it at length here because it is quite lengthy and one is limited to 8,000 characters in a post. In 2001 there was litigation against the Minister for Immi in a case called Blair. The child at the centre of the case was a boy of about 10 with Down Syndrome. I'm a lawyer (but not Australian qualified) so I am used to reading reports of Court cases. The litigation in Blair was a hopeless attempt, in my view, because the wording of PIC 4005 never has supported what they were trying to say. However, the family were immensely wealthy and so they made what I think was a futile application to the Court. I'm not a medic so I have no idea about the medical evidence in Blair. From the sound of it, the child was actually pretty severely disabled by Down Syndrome. It was common ground between the parties that the child would never be able to lead a normal life when he grew up. Therefore if he had been allowed to migrate permanently he would undoubtedly have become eligible for the top whack, I suspect, of Australia's Disability Support Pension: Disability Support Pension The family tried to argue that a large Trust fund had been set up for the child so he would never need to work anyway, plus he would be so wealthy that he would not qualify for DSP because it is means-tested in Oz (unlike in the UK) unless the applicant is "permanently blind" which the Blair child was not. Therefore they tried to say that potential eligibility for DSP and all the ancillary Benefits that would flow from it were irrelevant because they would never be claimed. They argued that there would be no cost to Medicare either, because they could plainly afford the finest medical attention that money can buy. I think the family's argument was specious because that is not how PIC 4005 works. 4005 brings it down to the lowest common denominator: the visa applicant has no money and therefore would need the help of the State one way or another, to a degree which would be a "significant cost" to the Aussie tax-payer. Permanent Residency in Oz is a package deal: with it comes an automatic right to Medicare and an automatic right to be given State Benefits if necessary. The Australian Govt has always maintained the stance that if you migrate to Oz then you get the full package and it is not possible to contract out of bits and pieces of it because that would create a two tier society. It would enable positive discrimination in favour of the wealthy and I completely agree that that is not on. Hence I am convinced that it was futile litigation. After Blair there followed a string of Court cases, all trying to argue different bits of the coin. Some of the legal fictions invented by the Judges in some of them were just plain strange, too, but they are now largely irrelevant because of Robinson in 2005. I think the DIAC legal team and the MOC between them completely misunderstood the ratio decidendi in Blair. They appear to have thought that Blair had provided a legal authority for the proposition that medical cases can be decided on the basis of generic information about the condition itself (often 20 years out of date information at that) rather than deciding them on the basis of the specific medical condition of the specific visa applicant in question. Nothing in the Blair judgement even mentions the notion so I simply fail to understand how DIAC & the MOC could have misunderstood the judgement so completely - but they appear to have managed to do so. Therefore the MOC appears to have thought that a case of Down Syndrome would automatically lead to a visa refusal because of the decision in Blair, when this is not what Blair decided at all. Not by any stretch of the imagination. I think Blair probably was correctly decided on its own facts because it does seem that the child was severely affected by Downs. FFWD to 2004 & 2005 and the Robinson case. Again, it concerned a boy who was about 10 when the Court dealt with it in November 2005. Mrs Robinson is a midwife in Perth. The crux of Robinson and the reason why it has become the new milestone is that the child is not severely affected by Downs. Master Robinson only has a mild degree of disability and therefore there is no reason to suppose that he will not be able to lead a normal life once he grows up. The litigation forced the Minister for Immi to accept that every single one of the cases involving a medical condition must be determined on its own facts alone and not according to any vague, generic criteria about the condition. That said, the MOC doctors continue to make unforgiveable mistakes, as happened to one of our PiO members earlier this year. They are overworked, underpaid GPs employed by the civil service and why on earth any of them prefer to spend all day long pushing a pen instead of prodding a patient is completely beyond me. I simply cannot understand why one would go to all the hassle of becoming a doctor if one does not want to help a sick person. I thought that was the whole purpose of Medicine, but still.... I don't think it is possible to say that Dr Moeller's case will have the same outcome as Robinson has now (finally) had. The whole world knows that Dr Moeller's son has Down Syndrome but there has been no publicity about the severity of the child's condition. Similarly Dr Downes in Sydney has revealed nothing publlcly about the severity of his own child's condition, which I am pretty sure is an austistic spectrum disorder completely unrelated to Down Syndrome, but the principles established in Robinson apply regardless of what the actual medical condition might be. And "permanent blindness" will always be the exception to the rule anyway because of the fact that that condition is the only one which gives an automatic entitlement to the full rate of Disability Support Pension without any sort of means-testing. Nobody should be in any doubt about this. I think it is brilliant that Senator Evans has enough commonsense to realise that the situation with these cases cannot continue to lurch along as it currently does. (Personally I think that he is the best thing that has ever happened to the Australian Immigration system, but doubtless many people would disgree with my view.) However I do think that any significant changes are likely to be a long time in coming. I also think that the child cases which also involve parents in the medical profession will lead the change because the doctors like Dr Downes and Dr Moeller - regardless of the sorts of conditions that they treat in their own working lives - will undoubtedly see to it that the MOC is prevented from relying from vague assumptions - often hopelessly out of date ones - about specific medical conditions in the future. And I would hope that both doctors will give the Minister severe earache. Plus both doctors have hospitals etc backing them to the hilt about the medical details. Mrs Robinson has had that as well. So I think the medical profession will lead the way in getting the present muddle resolved but I do think it will take time. I reckon 5 - 10 years, probably. Best wishes Gill Last edited by Gollywobbler; 17-11-2008 at 01:16 AM.