solar

Hello. I'm a civil engineer with wife and 4 young kids. One daughter has downs syndome. She is 10 and in mainstream junior school. She is not quite the worst at reading or maths in her class of normal children. No health issues and in UK, every prospect of holding down at least a menial job.

Any ideas of our chances of getting a permanent visa ? I'm 45 in december.

Thanks

JAJ

With Downs Syndrome you have to know it's an uphill task to meet the health criteria as there is no health waiver on skilled visas.

Maybe possible if prognosis is especially good, but realistically you need to get advice from an immigration lawyer who specialises in health issues to know what the chances are. Not many have this experience, one who does is Peter Bollard in Sydney: http://users.bigpond.net.au/onk/


Jeremy

solar

I shall visit the address above and give the guy a call later this week.
Thank you and I shall let you know prognosis.

OriginalSunshine

solar - no idea about the health issue, but given your age, I would personally immediately get your university transcript & degree certificates copied & certified and sent off to IEAust. It only costs you AUS$250.
This is taking me a long time (also a civ eng) - university took from October until January (yesterday) to send my transcripts!
But the good news is you get lots of points 60+15+10 as an MODL 136 visa applicant!
So send off NOW, and in the meantime, find out about your daughter's condition.

Best of luck!

solar

OriginalSunshine - that's just the incentive I need. And I still want to be able to celebrate my 45th.
Thanks

Gill Palmer

Dear Solar

Reading Jaj's various posts last night (because I reckon he really is good, and a fount of knowlege) he said that there is a "rule of thumb" about the health criteria. He says that they get difficult if the cost of providing any special medication or whatever is likely to exceed about $20,000 AUSD in the first 3-5 years. I hope he will read this and comment further, because I don't know any more about it than he said, but for other reasons (which are irrelevant to you) I would be very interested in anything more that Jaj can tell us about this rule of thumb.

There has been litigation with DIMIA over a child with Downs. I'll try to find the case again (one can read it on-line) and watch this space. When I find the case, I'll e-mail the link to you via this site. If nothing else, reading the Judgement would provide you with a very useful insight into how DIMIA and the Court respectively approached teh whole thing. The Judge was scathing towards DIMIA in some parts of his Judgement, and my guess is that they will have heeded his words.

Hang in there. Do some more research, and I'll help with anything I manage to unearth. I'm no expert, and it is no substitute for consulting a good solicitor, but you can discover a lot by yourself too. I'm finding that reading the actual cases is providing me with no end of information about exactly how the whole thing works behind the scenes vis-a-vis the health criteria.

I happen to know that for my mother, Clause 4005 of the Migration Regulations 1994 (as amended) is the relevant one on Health. I don't know which of the 4005 et seq series but there are only about 3 on health, so it must be that one of 4005, 4006 or 4007 is relevant to the type of visa you would need, I should think.

The first thing is to read the relevant part of the Regs, I suggest. (Read them aloud - daft though that sounds, but it works - and you will find you can make sense of them if you do that.) To find the Regs, tell a Search Engine to find ComLaw and once in ComLaw, click on commonly viewed legislation. 4005 et seq is in Volume 6 of the Regs. It is available in Word, but it is quicker to use in pdf format. Both are offered. The DIMIA website also gives a link to ComLaw by the way.

I found the case Law by telling a search engine to look for, "Legal interpretation of "significant cost" in 4005 Migration Regulations 1994." Put "significant cost" in quotes but not the rest.

I also found relevant extracts from a document called PAM3, in a ruling by the Australian Ombusman in another case. Again, the matter turned on the medical grounds, and the Ombudsman quotes the health stuff from PAM3 at great length. PAM3 is the Procedures Advice Manual, which is the DIMIA caseworkers' Bible. The version the Ombudsman quotes is now out of date, but any document that your oppos are using is useful to you too, I suggest.

Keep smiling. If this is do-able, the way to do it can be found and lots of people will try to help you.

Cheers

Gill

orange&

Gill, this is one of the most helpful and informative and encouraging posts I've read on BE. You're a star....

Gill Palmer

Ths is very kind of you. I know exactly how we all feel, and others have encouraged and supported me too. On a lighter note, a friend of mine is a Civil Service doctor in London. He says he has heard that the wording used in the Health Criteria in the MigRegs is repeated verbatim in the equivalent Australian legislation about the import and quarantining of animals. Now that is what I call economy of effort by the Parliamentary Draughtsman!

Cheers

Gill

JAJ

There's not a great deal more that can be said other than to point out:
- they also consider community support costs (eg special education);
- private means are irrelevant
- they can also refuse if they think it will prejudice Australian citizens and permanent residents access to scarce resources (eg organ transplants).


- 4005 is the standard health criteria for most permanent visas. No waiver is available.
- 4006 is for some temporary visas
- 4007 is for PR visas with a health waiver (eg spouse, child).

With respect, I don't think it's a good idea for someone to try to take a DIY approach on this. Although there is an appeal right (to the Migration Review Tribunal) on parent visas, offshore general skilled applicants have *no* right of appeal other than judicial review.

More that that, most solicitors won't have much idea how to handle a case like this. A few, like Peter Bollard can give advice - but they can't magic up a visa if the health criteria are clearly not met.

With Downs Syndrome, DIMIA are likely to automatically refuse the application unless they can be presented with convincing evidence that the health criteria are met. For PR visas without a health waiver, the criteria are not flexible.


Jeremy

Gill Palmer

Dear Jaj

Keep your hair on, my friend! Every word that you have uttered is accurate, but no good lawyer including your friend Peter Bollard would prevent this father from reading Blair v MIMA, which is the case to which you refer. It is because of that case that Solar needs very careful legal advice.

He is no fool. He has read the case and has replied to me privately. I have endorsed your suggestion that the next step now is to consult a specialist solicitor. Beyond that, I don't think that this matter should remain in the public domain.

Regards

Gill

selina

hi solar, i would agree with original sunshine. time is not on your side due to your age. if you really want to go then get started yesterday. you will probably need to use an agent/lawerrfor your case but there is no reason why you can't start getting the info ready for them. sort out your transcripts and get letter from your daughters school, gp, consultant etc as this can take time to sort out (i've been there with my sons medicals). your agent will tell you what you need to get but there are things you can do now, so get doing. regret the things you did do not the things you didn't do! good luck. selina xx