Anyone who can offer advice to prove dependancy of child who is 18

[Lizaberrie]

Hi. I have a son who up until the beginning of August was working in a local factory as an apprentice furniture maker. He also has Asperger's Syndrome and some learning difficulties (I think some of it was brought on by his traumatic birth/delivery). Unfortunately, he was finding it increasingly challenging to get himself up for a 6am start at the factory and the work seemed a bit tedious to him - eventually, and despite advice from us, he decided to resign. He had worked there since late September 2011, so not very long. The employer has however agreed to give him a reference to reflect on his positive contribution for the time he was there, which is something.

 

He was 18 in June and is now regarded as a non dependant however given the extent of his condition, he is still very much dependant upon us, and that's not to say he won't go on to live a full and active life ... just may take a while. At the moment he has a little bit of money left in his bank account, but he is living with us and we are charging him nothing for his food and shelter. When his money runs out, we'll have to pick up the tab for all his other essentials as well. He currently gets DLA for care/mobility and obviously these will stop if and when we move. He is currently unemployed and will find it hard to find something within his 'special interests' to motivate him - Australia on the other hand will hopefully open up all sorts of opportunities for him giving his love of boats/fishing, etc. I have been guided that there is a form (47a) that needs completion. I was wondering whether anyone has got any good advice to offer for it's completion.

 

Thanks in anticipation, Lizaberrie

 

RCB approval from WA Govt 11.9.12;

[wrussell]

Hi. I have a son who up until the beginning of August was working in a local factory as an apprentice furniture maker. He also has Asperger's Syndrome and some learning difficulties (I think some of it was brought on by his traumatic birth/delivery). Unfortunately, he was finding it increasingly challenging to get himself up for a 6am start at the factory and the work seemed a bit tedious to him - eventually, and despite advice from us, he decided to resign. He had worked there since late September 2011, so not very long. The employer has however agreed to give him a reference to reflect on his positive contribution for the time he was there, which is something.

 

He was 18 in June and is now regarded as a non dependant however given the extent of his condition, he is still very much dependant upon us, and that's not to say he won't go on to live a full and active life ... just may take a while. At the moment he has a little bit of money left in his bank account, but he is living with us and we are charging him nothing for his food and shelter. When his money runs out, we'll have to pick up the tab for all his other essentials as well. He currently gets DLA for care/mobility and obviously these will stop if and when we move. He is currently unemployed and will find it hard to find something within his 'special interests' to motivate him - Australia on the other hand will hopefully open up all sorts of opportunities for him giving his love of boats/fishing, etc. I have been guided that there is a form (47a) that needs completion. I was wondering whether anyone has got any good advice to offer for it's completion.

 

Thanks in anticipation, Lizaberrie

 

RCB approval from WA Govt 11.9.12;

 

Here is the bones of the applicable legislation:

dependent child,

of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a) has not turned 18; or

(b) has turned 18 and:

(i) is dependent on that person; or

(ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

 

 

Regulation 1.05A (1) Subject to subregulation (2), a person (the first person) is dependent on another person if:

(a) at the time when it is necessary to establish whether the first person is dependent on the other person:

(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

 

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From what you have posted there are other potential issues.

 

You seem to have proceeded in just about the worst possible manner and you are in a minefield.

 

May I suggest that you consult an experienced registered migration agent without delay?

 

If you are already being represented by a registered migration agent, ignore this post.

 

All the best with whatever you decide to do.

[Lizaberrie]

Yes we are working with an agent and it's unfortunate that he is now 18 but we must do what he can - he is dependant on us - just wanted a steer from anyone that might of done it before. That's all

 

 

 

Here is the bones of the applicable legislation:

dependent child,

of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a) has not turned 18; or

(b) has turned 18 and:

(i) is dependent on that person; or

(ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

 

 

Regulation 1.05A (1) Subject to subregulation (2), a person (the first person) is dependent on another person if:

(a) at the time when it is necessary to establish whether the first person is dependent on the other person:

(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

 

****************************************************************************************************************************

 

From what you have posted there are other potential issues.

 

You seem to have proceeded in just about the worst possible manner and you are in a minefield.

 

May I suggest that you consult an experienced registered migration agent without delay?

 

If you are already being represented by a registered migration agent, ignore this post.

 

All the best with whatever you decide to do.

[rammygirl]

Putting aside the potential problems that Westly indicated, here is what helped us.

 

We paid our son an allowance every month to help with the financial dependency part. Can you do this, even if he ends up paying it back for bed and board. This is more concrete proof of dependency than just saying you pay for everything. It will show then that his main income is from you.

[Ports3]

I had to get financial proof of my support to my son (that I pay his schooling in college), that he has no residential address as he is residing with us (also found on receipts that has his name and our address) and the monies I sent (though indirectly because my wife is the account holder). I printed all those and submitted together the form. It did take a while for the visa to come out due to this but it did come out and my son was allowed to join us though he is 19 at that time. So, gather whatever proof you have.

[wrussell]

I have highlighted a potential issue from the Public Interest (in this case Health) criteria below.

 

The rule with these issues is - one fails, all fail.

 

This might be why you have not heard from people who have done it.

 

(1) The applicant:

 

 

(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

 

(i) must undertake any medical assessment specified in the instrument; and

 

(ii) must be assessed by the person specified in the instrument;

 

unless a Medical Officer of the Commonwealth decides otherwise; and

 

(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

 

(a) is free from tuberculosis; and

 

(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

 

© is free from a disease or condition in relation to which:

(i) a person who has it would be likely to:

(A) require health care or community services; or

(B) meet the medical criteria for the provision of a community service;

during the period described in subclause (2); and

(ii) the provision of the health care or community services would be likely to:

(A) result in a significant cost to the Australian community in the areas of health care and community services; or

(B) prejudice the access of an Australian citizen or permanent resident to health care or community services;

regardless of whether the health care or community services will actually be used in connection with the applicant; and

(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment -- has provided the undertaking.

 

(2) For subparagraph (1) © (i), the period is:

 

(a) for an application for a permanent visa -- the period commencing when the application is made; or

 

(b) for an application for a temporary visa:

 

(i) the period for which the Minister intends to grant the visa; or

 

(ii) if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph -- the period commencing when the application is made.

 

(3) If:

 

(a) the applicant applies for a temporary visa; and

 

(b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

 

the reference in sub-subparagraph (1) © (ii) (A) to health care and community services does not include the health care and ...

 

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If your agent knows what s/he is doing you might be able to make a case.

 

Give this information to your agent:

 

 

 

 

 

 

REQUIRED FORMAT OF SPECIALIST MEDICAL REPORT

 

To meet the legal requirements, the medical specialist’s must:

1) State that he or she has been provided with a copy of the Schedule 4 criterion. [Appendix B]

2) Describe your medical condition exactly.

3) Detail the medical treatment and medications that you have received.

4) Describe the treatment and medication that you are now receiving.

5) Describe the ‘usual course’ of your condition. If there is a wide range of possibilities, summarise them.

6) Describe your specific prognosis in terms of:

(a) The likely progress of your condition

(b) The expected cost and treatment, if any, if your condition follows the likely course.

7) CONCLUSION Will your condition result in a cost to the Australian government of $21 000 over five years with 65% certainty? 8) CONCLUSION Are you likely to require medical treatment within the next five years (with 50% certainty) and what is the likely cost? 9) CONCLUSION Are you likely to require medical treatment beyond this five-year period (with 50% certainty) and what is the likely cost? Please note that for each of the Conclusions it is important for your medical specialist to use this precise wording, because this is the actual legal test. The important word is likely.The test is not whether the events might take place, but, in the specialist’s opinion, whether they are likely. It is entirely a matter for your treating specialist to decide which tests are indicated.

 

 

Appendix B

 

[h=4]SCHEDULE 4 - PUBLIC INTEREST CRITERIA AND RELATED PROVISIONS[/h] (1) The applicant: (a) is free from tuberculosis; and

(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

TRANSITIONAL PROVISIONS

© subject to subclause (2), is not a person who has a disease or condition to which the following subparagraphs apply:

(i) the disease or condition is such that a person who has it would be likely to:

(A) require health care or community services; or

(B) meet the medical criteria for the provision of a community service; during the period of the applicant’s proposed stay in Australia;

(ii) provision of the health care or community services relating to the disease or condition would be likely to:

(A) result in a significant cost to the Australian community in the areas of health care and community services; or

(B) prejudice the access of an Australian citizen or permanent resident to health care or community services;

regardless of whether the health care or community services will actually be used in connection with the applicant; and

(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment, the applicant has provided such an undertaking.

(2) The Minister may waive the requirements of paragraph (1) © if.

(a) the applicant satisfies all other criteria for the grant of the visa applied for; and

(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:

(i) undue cost to the Australian community; or

(ii) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

 

*******************************************************************************************************************

All the best.

[rammygirl]

Seems like catch 22. Prove dependency because he is unable to work but still pass the medical criteria for the visa. Can this be done?

 

If he passes the medical criteria is it not better to prove dependency some other way. Like getting him enrolled at college on a F-T course etc.

 

Tricky

 

There has been some issues with the public interest criteria because services for autism in many areas of Oz are poor, This means that Aussies are already finding it difficult so allowing more people in will make things worse.

 

They should of course be providing more services but that is not the issue here.

 

I do hope you find a solution.

[wrussell]

Like getting him enrolled at college on a F-T course etc.

 

Had the OP been correctly advised in the first place this might have been the best strategy.

 

It would have avoided the catch 22.

 

Depending on the particulars of the case, it might be too late for this.

 

Once dependency is established, if one family member fails the public interest (health) criterion then all applicants must be refused visas unless a waiver is avail able and is granted.

 

They have just about painted themselves into a corner.

 

There are several possible strategies available to sidestep the issue that would be technically difficult and there would be no certainty of success.

[Guest michelle bolwell]

hiya, my son also has Aspergers and is 19. We are in the proceeds of proving that he is dependant, our agent is not concerned so long as we provide receipts you will be fine. oh and we are in Plymouth !!!!

[Rupert]

hiya, my son also has Aspergers and is 19. We are in the proceeds of proving that he is dependant, our agent is not concerned so long as we provide receipts you will be fine. oh and we are in Plymouth !!!!

 

There is nothing fine about OPs situation, as explained by Wesley. Has your son stayed in education? If he has then it is much easier to handle but OPs son went to work which has complicated matters.

[Guest michelle bolwell]

my son has a full time job and we are FINE with our agents advice.

[Rupert]

my son has a full time job and we are FINE with our agents advice.

 

You have a 19 year old in full time work and you think you are fine to prove dependency? Okay.... Maybe come back when you have a visa or share with OP how your agent has argued this. Simply saying it will be fine is really not that helpful, it is actually very complex.

[Guest michelle bolwell]

i don't need to prove anything to you now go away you strange human being !!!!!!!!!

[wrussell]

You have a 19 year old in full time work and you think you are fine to prove dependency? Okay.... Maybe come back when you have a visa or share with OP how your agent has argued this. Simply saying it will be fine is really not that helpful, it is actually very complex.

 

The regulations and policies governing the health criteria are among the most complex areas of migration law.

 

I strongly advise prospective applicants who have a diagnosed medical or developmental condition to seek professional advice before committing to a course of action.

[Guest michelle bolwell]

Thankyou and yes we have.

[Lizaberrie]

i don't need to prove anything to you now go away you strange human being !!!!!!!!!

 

Sorry, but well said Michelle! I have been sat back reading all of the comments posted to my thread - I asked for advice from those who had been through similar not comments to put the "frighteners" on me. I know the path we are treading is complex but for goodness sake, a reality check is not what I need. I know my son and our situation better than anyone. We are a loving and supportive family and will not be disheartened by certain individuals somewhat questionable responses. You are doing more harm than good - enough said, I'm outta here!!!!

 

Michelle - I'm pm'ing you ...

[Sammy1]

People are regularly refused visas here due to medical conditions. You have a complex problem as others have realistically pointed out. If you prove he is dependent because of health issues and that he has a disability allowance, then you enter a minefield of issues here. Simply because services in Australia are already stretched and if you apply for dependency on the basis of special needs then Australia will almost certainly turn you down.

[Guest michelle bolwell]

hiya, im guessing Rupert does not have a dependant who has Aspergers and i found the negative comments hilarious. As you know its not all doom and gloom. my friend emigrated to oz three weeks ago with a child of Aspergers and all was FINE hee hee !!!!

[Guest GeorgeD]

hiya, im guessing Rupert does not have a dependant who has Aspergers and i found the negative comments hilarious. As you know its not all doom and gloom. my friend emigrated to oz three weeks ago with a child of Aspergers and all was FINE hee hee !!!!

 

I totally agree that everyone's situation is different, however Rupert (and Westly and others) are also correct to point out that it is far from trouble free to emigrate with a dependent ADULT (a son who is no longer of child age) who has previously been working and supporting themselves in the eyes of DIAC. In that context, I really don't think he was being negative, more cautionary than anything else. Without the medical condition it would be extremely difficult to prove dependency. With a medical condition we arrive at the catch 22 situation of him previously not being dependent, but his condition meaning he is now dependent (and therefore possibly having issues with the Health criteria) This is a real concern, hence the OP's desire for advice here no doubt.

 

I am glad you are happy with the advice your agent is giving you, and I am delighted your friend emigrated to Oz with a child (what age BTW?) with a health condition. I do think Rupert is right though, it would be great if your friend who had a dependent adult family member who had previously been working and been approved could come along and let the OP, and others in a similar situation who may be reading this, know what sort of direction their application took, specifically any evidence they provided and what sort of rollercoaster ride they are in for. It's not releveant to me, but I am sure there are others who are in or will be in your situation and would appreciate some insight. I also know you want to reassure the OP it will be fine when you said your agent told you it will all be good, but putting myself in the OP's shoes, I would feel just that little bit more secure if you had already been succseesful in your application. I realise the people on this thread in this situation are taking the advice of agents, but it is also interesting to note the concerns of the RMA who has posted here. I suspect Westly doesn't have a child with Aspergers either, but I would still think of his advice as being the most important and insightful here...I am sure he has gone through this or a similar process with many others in the past.

 

The success or failure of the application may actually have little to do with the dependent's condition and more to do with the strategy and approach taken in the application, and how evidence and justification are put together.

[wrussell]

I realise the people on this thread in this situation are taking the advice of agents, but it is also interesting to note the concerns of the RMA who has posted here. I suspect Westly doesn't have a child with Aspergers either, but I would still think of his advice as being the most important and insightful here...I am sure he has gone through this or a similar process with many others in the past.

 

Quite so, but I raised a handicapped child on my own. That is why I took an interest in the matter.

 

The reason the OP has not received replies from similarly placed individuals is fairly obvious.

 

Over almost 10 years I have (100%) successfully advised/represented clients with HIV, quadruple bypass, dengue, type II diabetes, hepatitis B, developmental delays, dementia and so on and I do not propose to involve myself in disagreements with people who think they know all about it.

 

The success or failure of the application may actually have little to do with the dependent's condition and more to do with the strategy and approach taken in the application, and how evidence and justification are put together.

 

 

Precisely. I probably should have posted as much and stopped at that.

[Tickled Pink]

I think it was a little off to use massive red letters to stress a point though. I have observed other less established members do similar things previously, who were 'warned' by other members of the bad etiquette of doing so, and how it can upset and be seen as 'shouting' at others.

 

Make a point by all means, everyone should be entitled to do this here, by nature not all will agree, but I will stick my head above the parapet and say I was a little shocked about how that point was made, and felt (still feel) it was unreasonably done.

[Guest GeorgeD]

I think it was a little off to use massive red letters to stress a point though. I have observed other less established members do similar things previously, who were 'warned' by other members of the bad etiquette of doing so, and how it can upset and be seen as 'shouting' at others.

 

Make a point by all means, everyone should be entitled to do this here, by nature not all will agree, but I will stick my head above the parapet and say I was a little shocked about how that point was made, and felt (still feel) it was unreasonably done.

 

And when I read it I thought it was actually quite helpful to make it larger and in red to be able to read it. I didn't even think of that post as being unreasonable at the time, and on reflection I still don't! I suppose it illustrates the danger of posting on forums...people can't hear your voice so the 'tone' can easily be interpreted differently from the manner it was intended. I fully believe the content Westly highlighted was relevant and useful.

 

Without trying to upset anyone...can we all agree to disagree about the tone of some previous posts, and go back to the OP's question regarding experiences of any members with adult dependents who have a health condition but have previously worked and been independent...

[Guest guest36187]

The issue ( as I have said many times before) with Internet posting is that ten people can perceive it ten differing ways.

i didn't perceive any of it as offensive but some of it was clearly taken that way. When you post for "advice" you will always get opinions tha you may not want to read or hear, specially on an Internet forum.

[Guest The Pom Queen]

i don't need to prove anything to you now go away you strange human being !!!!!!!!!

Rupert was trying to advise, as is Wesley, I'm sorry if it's not what any of you want to hear, but I would be careful getting personal with anyone on here especially as we have numerous CO and employees of DIAC on the forum.

[Guest The Pom Queen]

Sorry, but well said Michelle! I have been sat back reading all of the comments posted to my thread - I asked for advice from those who had been through similar not comments to put the "frighteners" on me. I know the path we are treading is complex but for goodness sake, a reality check is not what I need. I know my son and our situation better than anyone. We are a loving and supportive family and will not be disheartened by certain individuals somewhat questionable responses. You are doing more harm than good - enough said, I'm outta here!!!!

 

Michelle - I'm pm'ing you ...

No one is questioning how loving and supportive you are as a family. You asked for advice and you have been given some excellent information by people who do know what they are talking about, I'm sorry if it's not the information you want to hear, but if they told you that you would get your visa no problem at all and then you didn't what use is that, building your hopes up.