The hidden trap in Australian immigration process for families with members having medical issues

If you have received an invitation to apply for immigration visa and you have a migrating family member with medical condition, you better read on.

This is related to an earlier article I wrote couple of months back.That was after my visa application under subclass 189 was refused when my daughter failed health screening. I gained better understanding through more efforts since then. I hope following information can help unsuspecting families to avoid the distress and financial loss we were put through.

Visa applications for Australian immigration will be rejected if anyone of the applicant family members will fail health screening test. Any medical condition which is estimated to cost significantly will mean sure shot rejection for the entire family and will result in the loss of entire VISA application fee which is quite significant. The following link mentions this criteria but does not explain how a significant cost is calculated:

https://www.border.gov.au/Trav/Visa/Heal/overview-of-the-health-requirement/significant-costs-and-services-in-short-supply

And there is no way to make effective queries before submitting an application to know the calculation methodology. After getting my application rejected, I did some research and found out that a calculator known by the name of 'Notes for Guidance' used by Medical Officers of Commonwealth' (MOC) can be theoretically accessed through https://www.border.gov.au/Trav/Visa/LEGEND but only if you hire services of a subscribing lawyer or Migration Agent. I was given this information by DIBP officials in response to my numerous queries post rejection. By doing this they claim that the cost calculator is 'publicly available'.

While on-shore applicants can engage review bench and minister's intervention as ultimate options, for off shore applications, a rejected application is the END. There is another avenue of the common wealth ombudsman but that too sides with DIBP and puts the onus of making 'effective queries' upon applicants without clearly specifying how to do that.

My interaction with Ombudsman was also interesting. Initially he rejected my complaint by saying that I could have accessed missing information through something he termed as 'effective queries'. While he did not specify what he meant by it, I decided to give it a try and see if that could have made any difference. I searched through DIBP website and its FAQ section but no information on the health cost calculation methodology was found. A query form redirected to a regional VISA processing firm called VFS. And VFS redirected me back to DIBP or advised  contacting a migration agent. Upon updating ombudsman, he said I could have contacted migration agent. To test his advice again I sent a query to a MARA recognized migration agent repeating same query about the health cost calculation methodology. He also redirected me back to DIBP by saying his services are limited to his clients only. I did update the ombudsman but he went quite.

during this struggle, I approached the immigration minister, the prime minister, political parties, news persons etc. Except for the greens party, I did not receive a positive response from anyone. In fact almost no one else bothered to respond.

Currently I am trying to submit a refund request (form 1424) but DIBP officials are resisting and not allowing me to even submit the application since my application is already refused. So far they have not been able to provide any reference to a legal framework which bars submission of refund request post decision. I am following this one.

To conclude, I would recommend all prospective applicants of Australian Immigration with a family member having a medical condition is to hire a recognized MARA agent. The best advice a good agent can give you is that if you should or should not commit time and money into this process. This is because the immigration department does not bother or feel ashamed of eating your hard earned money by not providing you upfront and clear indication of the despise that effectively exercise for people with health issues especially kids.

The so called universal human values are an eye wash. They are relative to a number of things. So if you are already having a hard time due to a health issue in family, better play it safe, avoid further hardship and Good Luck!

Flaws in Australian Immigration Process

Every country has the right to safeguard the interests of its citizens by applying appropriate filters in its immigration process. However, it is also unethical to lure applicants in investing time and energy into an immigration process without disclosing key criteria to them and later refusing their applications based on the same undisclosed criteria. As I experienced, Australian immigration process has this flaw at two places. First at the time of sending invitation to apply for VISA and later in the framework of health screening. For details, please refer to Figure 1 and read on.

                                 

                               Figure 1 Australian Immigration Process

I am a Pakistani Engineer working in Saudi Arabia. I applied for Immigration VISA under subclass 189 in March 2016. After completing all eligibility requirements, I received an invitation to apply for VISA from the department. I submitted fee (AUS 8100 for the family) which is besides medical and professional accreditation expenses. However, the visa was refused in the final stage citing medical condition of my daughter. I did receive a notification of adverse comments (without any specific referrals), prior to refusal, from MOC* (Sept 2016) regarding my three year old daughter's health. I did supply several fresh reports based on my own understanding since no specific requirement was given (Oct 2016), and a statement highlighting her improving health condition. However, this did not change the opinion of MOC, so the case officer refused my visa (March 2, 2017). My daughter was born premature and suffered birth trauma. Resulting in developmental delays. She just turned 4, has normal limbs, can walk with support, recently started to speak, responds well, plays alone and in group, is aware of and interacts with everything around her etc. Above all her condition is constantly improving, and exhibits immense potential. In-fact there has been significant improvement from the time I received initial adverse comments from MOC and the eventual refusal of visa application.

MOC opinion is too harsh and negative on her and based on scale that is not available to applicant. They estimate, based on the medical reports that she is “dependent for assistance with most activities of daily living”, “her condition is permanent” and is likely to incur significant cost to Australian social security systems, (estimation methodology or breakdown of cost was not provided). I continue to disagree with them strongly. There is a video library in which I have been documenting her activities since getting initial adverse opinion of MOC in October 2016 [1]. You can go through the video library yourself and vet MOC’s opinion mentioned above.

I have following points to summarize my opinion on this issue:

1.     The assessment framework of MOC is flawed, unfairly rigid and is responsible for miscarriage of my immigration case. It relies too much on blindly supplied medical reports and lacks the dynamic inquisitive nature of medical profession that is needed in cases such as my daughter.

2.     There is no way for applicant to assess in prior if a medical condition will incur "significant cost" which becomes THE reason for refusal. The "Notes of Guidance" that MOC uses are not publicly available to the best of my knowledge as per para 4.68 here [2].

3.     The immigration portal does highlight diseases like TB or polio as a matter of concern. However, acute sensitivity to children with delays that I have experienced, qualifies explicit presentation so that unsuspecting applicants like me do not commit so much time and money into immigration process.

4.     It is unfair to take hefty visa fee (apparently nonrefundable) before conducting critical medical screening and without making MOC assessment criteria available to applicant.

5.     Health screening or adequate presentation of health criteria should be incorporated before sending invitations to applicants to avoid making them commit so much time and money.

6.     The concerns I have raised are not unique. A little research revealed this issue was debated at length and the relevant committee of Australian Parliament and several recommendations were made. I am not an expert on law and legislation but following might be of interest to you:

a.     See 4.71 [2], suggest that notes for guidance should be made public. To the best of my knowledge they are still not public.

b.     See Recommendation 6, 4.72 [2],

                                  i.    Detailed cost estimation regarding a health condition should be published on the website. I did not find any on website.

                                 ii.    Applicant should be provided with detailed breakdown of cost that MOC estimates will be incurred due to a medical condition. I did not receive any cost breakdown.

c.      See Recommendation 8,

                                  i.    “…Australian Government remove from the Migration Regulations 1994 the criterion under Public Interest Criteria 4005, 4006A and 4007…”. Well my application was refused citing PIC 4005(1)(c)(ii)(A).

d.     See Recommendation 9

                                  i.    “The Committee recommends that the Australian Government amend Regulation 2.25A of the Migration Regulations 1994 in a manner which does not bind the Minister of Immigration and Citizenship to take as final the decision of a Medical Officer of the Commonwealth in relation to ‘significant cost’ and ‘prejudice to access’ issues, and provides scope for Ministerial intervention…” ….. My refusal letter states that I have no right to a review so an increased scope of ministerial intervention is a luxury.

                                 ii.    “The Committee also recommends that the Australian Government revise the approach which assesses visa applicants’ possible health care and service needs against ‘the hypothetical person test’. This test should be revised so that it reflects a tailored assessment of individual circumstances in relation to likely healthcare and service use”. ….The individual nature of my daughter’s case was not considered.

e.     See 4.10, 4.11, mentioned the attitude and understanding of panel doctors. My experience with him in Riyadh was disappointing. To date he is the only representative of Australian government to have directly examined my doctor. Well he examined 5 family member in in less than 20 minutes and asked for some documents to assess my daughter’s history. I handed over an 18 month old assessment report and he mailed it to the case officer without any further discussions. The MOC arbitrarily formed opinion on that outdated report which was submitted as history (which could not be changed later). This is what I meant by highlighting the lack of “dynamic inquisitive nature of medical profession” in point 1, above.

To Summarize

1. The process is inherently flawed as it sends invitation to apply for visa and collect fees without incorporating critical health information. 
2. The methodology of health assessment and cost calculation employed by MOC is passive and not transparent to the applicant at any stage.
3. Any country has the right to guard its interests however, it is unfair if not unethical to send invitations and obtain non refundable hefty fee from applicants without disclosing key information and make arbitrary decisions while giving no privilege to review.
4. I intended to give better living to my family but ended up being deceived by concealed filters in Australian immigration process. 
5. Besides the time and energy, I lost hard earned AUD 8100 in fees. In other word the 'system' ripped me off the money I could have spent on my kids including the one they think is permanently disabled !!

*MOC: Medical Officer of the Commonwealth

REFERENCES

[1].  https://sites.google.com/site/amaniinspires/

[2].  http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=mig/disability/report/chapter4.pdf