Prem
I have found that in order to give you a reasonable reply, printing
this thread is useful. You might find the same.
I think the answers are as follows:-
1. The Dutch medical pension will be ignored. It would not be payable
to the Australian-born (or subsequently PR in Australia) clone.
2. If the MOC finds that the clone would cost BOTH of the Health
Service AND Australian Social Security less than $20K within 3-5 years,
no further questions are likely.
3. Not quite. My reading of the technical medico-legal stuff is that
if the whole of life cost is likely to be under about $200K, then the
health-waiver would be forthcoming without too much trouble. $250K and
I reckon elasticity is likely. $350 and the water in "the medico-legal
bath" is getting too warm. $700K or so and Tim would be right outside
the acceptable ball-park in financial terms and DIMA could probably
make its own resistance stick to the wall in the Court.
In between is the 'grey area' which is impossible to define in monetary
(or any other) real terms. With anything in the grey area, success or
failure is likely to depend on the skill of the lawyer/migration
agent/applicant involved as much as on anything else, and with any sort
of Litigation, tactics are just as important as the strict wording of
the Law.
Basically, because Tim would be applying for a spouse-visa, the medical
issue for him depends on Public Interest Criterion 4007 in the
Migration Regulations 1994 (as amended.) Here is a linnk:
http://www.austlii.edu.au/forms/search1.html?&
Tell it something like "Spouse + 4007' and tell it to use 'any of
these words' in the scroll-down of what sort of logic you want the
search to use. Then hold down the Control key and select Commonwealth
Federal Court of Australia - decisions, ....Full Court decisions and
scroll on down to Migration Review Tribunal decisions as well. Those
3 are the ones that will bring up the cases you should consider.
IGNORE the Immigration Review Tribunal. It is defunct and the
medico-legal stuff in it is now out of date.
Going on down your post, never mind what Tim himself might or mght not
need. Focus on what his Australian clone might need, and accept that
the clone will Bludge Off The Dole if the clone gets half a chance,
since Australia has its own home-grown fair share of the Bone Idle and
Work-Shy, and the whole Immigration thing is worked out on the basis of
the lowest common denominator in DIMA's own backyard - ie the clone.
The assumption is that the clone will milk the situation successfully
and the eventual decision about Tim wiill depend on what the clone
would be able to get away with, in my own (admittedly cynical) view of
this game.
The Australian Government is not necessarily obliged to pay Tim's clone
a work-related State Pension. That depends on how lazy and/or disabled
the clone might have been. However, as in the EU, Governments believe
that they must 'look after' the socially vulnerable. They cannot be let
to starve on the street, and so if Joanna dies and Tim becomes
destitute, he might be able to claim Special Benefit. Centrelink is
the came for the Australian Social Security Department. It has a very
good website, so I suggest you study that too, with particular
reference to Special Benefit. It is available when nothing else is
possible, and with all the additional Benefits that it can spawn, the
total can be quite hefty.
If you are confident of your own ability to analyse the whole thing
accurately (and it seems to me that you are capable of doing so) then
basically you have a LOT of reasearch ahead of you, but there is no
reason why you should not get it right in the end.
I suggest that you also consult a website called British Expats. Look
for anything posted by George Lombard. He is a Registered Migraton
Agent, and I have found his advice to be first-rate. If you need
detailed help then I would have no hesitation in recommending George
for Tim's case.
Good luck, and come back to me if you feel that I might be able to help
any further. However I think that the next step for you is to study
Austlii and Centrelink, see what conclusions you come to from those,
and then take your query onwards from there.
Hard work, but I did the same thing recently on behalf of my elderly,
disabled mother. It is perfectly do-able. You are in possession of all
of the facts, so you are in the best position to research this on
behalf of Tim & Joanna.
Cheers
Gill
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