Doctor refused PR Visa because his son has Downs

[cazandkeith]

i feel that we are going to be in the same situation as this and it has certainly made me feel depressed about the whole idea i didnt realise that anywhere could still be so backward in there understanding my son has downs and has been under no more medical care than any other child of his age, im gutted that this could be the end of the road before we have even started

[moving2melbourne]

Originally Posted by cazandkeith

i feel that we are going to be in the same situation as this and it has certainly made me feel depressed about the whole idea i didnt realise that anywhere could still be so backward in there understanding my son has downs and has been under no more medical care than any other child of his age, im gutted that this could be the end of the road before we have even started

Hi Caz
I am sorry to hear this, don't give up without having a chat to a migration agent.
Big hugs
Kate

[Gollywobbler]

Originally Posted by cazandkeith

i feel that we are going to be in the same situation as this and it has certainly made me feel depressed about the whole idea i didnt realise that anywhere could still be so backward in there understanding my son has downs and has been under no more medical care than any other child of his age, im gutted that this could be the end of the road before we have even started

Hi Caz & Keith

Welcome to Poms in Oz.

Do NOT despair. How old is your son, please?

There have been two very important cases concerning children with Down Syndrome recently. One of the two was Dr Moeller's case, which you have read about on this thread. I think young Lukas Moeller is either 13 or 14 and he has a pretty severe degree of Downs. It is common ground between the parties in the Moeller case that Lukas will never be able to lead a normal, independent adult life.

The other child in the other case is young David Robinson. He he now also about 13 or 14 but he only has a very mild degree of Downs and the expectation is that he will be able to lead a perfectly normal life once he grows up.

It is a waste of time talking to a migration agent in a situation like yours because they are not doctors and very, very few of them understand the medico legal criteria for migration anyway. A small handful do but they are still not doctors and only a doctor can provide you with competent guidance in this situation.

The thing to do is to arrange to consult a Panel Doctor approved by DIAC:

United Kingdom - Panel Doctors

If you would care to send me an e-mail (not a private message) I can give you a whole load of bumph to study about this situation. However I know nothing about medicine and nor do any migration agents.

So although I can describe exactly what the legal issues are, you would then need to ask a Panel Doctor to examine your child, consider specialists' reports etc and the PD will be able to tell you which way s/he thinks the Medical Officer of the Commonwealth (MOC) would be likely to jump about your son. Migration agents between them only deal with about 20% of all visa applications. Panel Doctors between them examine 100% of visa applicants, plus the Panel Doctors have all been informed about the medical and the legal issues in both the Moeller and the Robinson cases.

To send me an e-mail (so that I have your direct e-mail address (because there are attachments which are too big for the software on here) please click on my user name and select the e-mail option.

There is no reason why you cannot consult a Panel Doctor about your son before you go any further with considering whether or not your son's meds would be a show stopper in the visa process. Panel Doctors are mainly ordinary NHS GPs who do Panel Doctoring for DIAC on a private patient basis so you can consult any of them at any time. Expect to pay about £100 for the consultation though a nice PD might well charge less.

Best wishes

Gill

[burgledad]

Hi Caz & Keith,

Gill is correct in that migration agents won't have a clue. One word of warning: our agent (VB) took the money for the 175 application and the DIAC fee knowing, it turns out, that the chances of success were negligible (see below). Sharks closer to home.

Our daughter (moderate learning difficulties) was assessed by a UK Panel Doctor as part of the 457 visa process but they are not batting for you at all. They simply report to the Medical Officer of the Commonwealth (MOC). Yes, these Aussies still like to claim to be part of the British Commonwealth when it suits them.

I've consulteded a Migration Barrister in Australia (two actually) and have written to Chris Evans (the Immigration Minister) for clarification; his office responded with an explanation of the law.

I'll try to make this clear but it doesn't make pleasant reading.
The MOC is totally empowered to make the decision on rigid legal criteria which is based on a generic theoretical cost formula. If your child may cost the State more than around $20k over 5 years then this is considered a Significant Cost; all the formulae seem to trigger this clause. At this stage in the process there is no legal avenue of appeal by applicants or even of intervention by the government.

The MOC consider medical costs and any other costs to the Australian community (Public Interest Criteria (PIC) 4006A); we failed on schooling cost estimates. The overall benefit that the family bring (skills, experience, trained at the cost of other countries' taxpayers etc) is not taken into consideration. A waiver MAY be granted which basically excludes the affected person from accessing state schools or medical support unless they pay. They say that this shows that they are not breaching a Convention on Rights for the Disabled but in effect this amounts to a constructive exclusion; schooling and medical costs are too high. My sponsoring employer has underwritten the waiver but the reality is that we have to fund the schooling and any medical bills, which is a deal breaker.

The next stage for us would be to apply for Permanent Residency whilst in Australia. This would fail because the law does not allow any other outcome (same criteria). We then go to tribunal which would again fail for the same reasons (no idea why this tribunal exists). Only at this stage can you ask the Minister to intervene and even with a good lawyer the chances of success are not good.

Australian migration law means that an application for a permanent (175) visa whilst offshore (outside Oz) will fail the MOC test every time. No other outcome is possible and there is no avenue of appeal whatsoever.

I know exactly how dissappointing this is but you need to be fully aware of the situation before wasting hope and money on such a society.

Cheers
John

[burgledad]

I forgot to add that the MOC will ask for school reports, medical reports, educational psychologist reports etc for your child after reading the Panel Doctor's first report. All of which have not to have been handled in any way by yourself so if you want to know what's in them you'll have to rely on the kindness of the people providing them. All of this is done whether or not the child is at a special needs school or intergrating into mainstream.

There doesn't seem to be an honest way around this. In the end the best result on a 457 visa is if you can pay for all the medical and educational costs and this will also depend on whether you have other children of school age that you also have to pay for.
Payment costs for state schooling is different from state to state and may also depend on your visa type.


John

[cazandkeith]

Originally Posted by burgledad

Hi Caz & Keith,

Gill is correct in that migration agents won't have a clue. One word of warning: our agent (VB) took the money for the 175 application and the DIAC fee knowing, it turns out, that the chances of success were negligible (see below). Sharks closer to home.

Our daughter (moderate learning difficulties) was assessed by a UK Panel Doctor as part of the 457 visa process but they are not batting for you at all. They simply report to the Medical Officer of the Commonwealth (MOC). Yes, these Aussies still like to claim to be part of the British Commonwealth when it suits them.

I've consulteded a Migration Barrister in Australia (two actually) and have written to Chris Evans (the Immigration Minister) for clarification; his office responded with an explanation of the law.

I'll try to make this clear but it doesn't make pleasant reading.
The MOC is totally empowered to make the decision on rigid legal criteria which is based on a generic theoretical cost formula. If your child may cost the State more than around $20k over 5 years then this is considered a Significant Cost; all the formulae seem to trigger this clause. At this stage in the process there is no legal avenue of appeal by applicants or even of intervention by the government.

The MOC consider medical costs and any other costs to the Australian community (Public Interest Criteria (PIC) 4006A); we failed on schooling cost estimates. The overall benefit that the family bring (skills, experience, trained at the cost of other countries' taxpayers etc) is not taken into consideration. A waiver MAY be granted which basically excludes the affected person from accessing state schools or medical support unless they pay. They say that this shows that they are not breaching a Convention on Rights for the Disabled but in effect this amounts to a constructive exclusion; schooling and medical costs are too high. My sponsoring employer has underwritten the waiver but the reality is that we have to fund the schooling and any medical bills, which is a deal breaker.

The next stage for us would be to apply for Permanent Residency whilst in Australia. This would fail because the law does not allow any other outcome (same criteria). We then go to tribunal which would again fail for the same reasons (no idea why this tribunal exists). Only at this stage can you ask the Minister to intervene and even with a good lawyer the chances of success are not good.

Australian migration law means that an application for a permanent (175) visa whilst offshore (outside Oz) will fail the MOC test every time. No other outcome is possible and there is no avenue of appeal whatsoever.

I know exactly how dissappointing this is but you need to be fully aware of the situation before wasting hope and money on such a society.

Cheers
John

i cannot beleive that in a supposed inclusive soceity this still occurs one would think that having to deal with just being 'different' was enough for both my son and our family without all the prejudices that come with it maybe we should just stick with our own country who at least dont pretend to be something they aren t thanks so much for your comments i thought the fly in our ointment would be trying to get my parents across with us not that my wonderful son ben would be such an issue thanks anyhow

[burgledad]

C&K,

I'm sorry to have been the bearer of unwelcome news but I wish somebody had pointed all this out to us two years ago. We could have saved ourselves two expensive family holidays down under (3 kids), visa fees, medical fees, deep dissappointment, loads of time and the indignation of having our beautiful daughter scrutinised by some backward fascists. Also, we could have been looking elsewhere.

Some people do get round the health criteria but I've no idea how they keep their kids under the MOC radar. It's too late for us now because we are known to the MOC.

Even the Minister's office believes that Australia upholds and respects the rights of the disabled (stated in a letter to me). They cannot see that their stance amounts to back-door discrimination. Basically, Australia is founded on a whole series of disciminatory principles (ask any Aborigine). If you are not young, white, healthy and skilled with English as your first language then don't bother because even if you do get in, you will not be welcome. The UK is very far from perfect but at least its society is founded on decent principles.

The odd thing is that Australian citizens have no idea. We have been in many discussions with employers and schools and none had a clue that his was their country's attitude. Many have said it is Australia's other shame, the main one being the Aboriginal history.

Their loss. Would you want to be part of such a society now you know? Keep moving forward.

Cheers
John