Campaign Platform

The Welcoming Disability Campaign calls for immediate review of the 2010 parliamentary report Enabling Australia: Inquiry into the Migration Treatment of Disability and for a revived investigation into the application of migration laws to people with disability or with health issues.

Key Points

• In 2010, the Joint Standing Committee on Migration delivered the report Enabling Australia: Inquiry into the Migration Treatment of Disability.

• The report made 18 recommendations focusing on the need for current migration health requirements to better reflect contemporary understanding of disability, to review and be more transparent with the process of determining the ‘significant cost threshold’ and to further consider the legal implications of section 52 of the Disability Discrimination Act 1992 (DDA).

• Current provisions in the Migration Regulations 1994, under the Migration Act 1958 discriminate against applicants with disability or a health issue applying for temporary or permanent entry into Australia.

• Migration is exempt from the operation of the DDA leaving migrants with disability without protection.

• There has been only limited action by any government-of-the-day since 2010 to implement the recommendations made.

• The significant cost threshold has been increased to $49 000 but this change occurred without any publicly available review of the appropriateness of the financial threshold.

Issue - What is the problem?

Migrants to Australia have to meet health requirements which aim to minimise the impact of planned migration on the health care system and community services, to prevent the spread of contagious diseases, and to protect Australia’s public health. While accepting the need to protect public health, we believe the current migration health requirements discriminate against individuals with disability or health issues based on assumptions around ‘cost to the community’ which are at odds with the rights and capacities of individuals with disability or with health issues.

Discussion

There has been sustained media coverage of cases where a person or family member has been denied a temporary or permanent visa to Australia on the basis of their disability or because of a health issue.

The Migration Regulations 1994, under the Migration Act 1958 impose a health requirement on all migrants and their dependents, and on all temporary visitors and residents. Schedule 4 of the Regulations sets out public interest criteria which require that visa applicants be free from a disease or condition that would require health care or community services, the cost of which would be ‘significant’. This is assessed over the duration or time frame of the temporary visa; or for a permanent visa, over five years for a short term condition, or over ten years for a permanent condition. Where that requirement for health care or community services would result in a ‘significant’ cost (currently $49 000) to the Australian community, the applicant fails the health requirement and the visa may be refused.

These costs are assessed on the basis of services which would be made available to an Australian citizen or permanent resident. The costs for services are assessed even where an applicant does not actually require the use of those services; it is enough that their condition could meet the medical criteria for use of a service. Further, in the case of applicants for temporary residence such as visitors, students or short term skilled visa applicants, who are in fact ineligible for community services such as Medicare, pharmaceutical benefits (PBS), or state or Commonwealth disability support services, the notional costs are still attributed to them, even though the costs cannot arise. 

The incredibly broad operation of this law means that there is little chance for a person with a disability or a health issue to meet the health requirement for a visa to enter or remain in Australia.

Legal protection under the Disability Discrimination Act is not available to migrants because any action permitted under the Migration Act is exempt from the operation of the Disability Discrimination Act.

The operation of the Migration Act and Regulations was subject to an inquiry in 2010 by the Joint Standing Committee on Migration, which resulted in the report Enabling Australia: Inquiry into the Migration Treatment of Disability. The report provided extensive analysis and commentary on the laws, now subject to significant public scrutiny; but most of the 18 recommendations of that report remain either unimplemented or only partially addressed.

The September 2019 UN Report on Australia's Review of the Convention on the Rights of Persons with Disability (CRPD) recommended that Australia

As a party to the Convention on the Rights of Persons with Disabilities (CRPD), Australia has an obligation to take all appropriate measures to modify or abolish existing laws and regulations that constitute discrimination against persons with disabilities.[1] The continued existence in the Migration Act and Migration Regulations of provisions which discriminate against persons with disabilities, violates this obligation. Further, Australian migration laws interfere with two articles of the CRPD (as relevant):

 Article 5

1. States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

Article 18

1. States Parties shall recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities:

   a) Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability;

   b) Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement;

   c) Are free to leave any country, including their own;

In our view, article 18 does not, in and of itself give rise to the right for a person with disability to migrate to Australia. However, the current health requirement enshrined in the Migration Act and Regulations does violate article 5 of the CRPD as a law which does not treat people with disabilities on an equal basis with others.

 It is noted that an Interpretative Declaration lodged by Australia when ratifying the CRPD provides:

This campaign calls for review of the existing provisions to identify a way that a migration health requirement can be enforced without discriminating against people with disability migrating to Australia. The foundation of this campaign is that our current migration health requirements and their application are not consistent with international human rights law.

Data on the cost of migrants with disabilities or health requirements

Other than protecting public health, the main argument used in support of the current health requirement concerns notional costs to the community.  The Australian National Audit Office (ANAO) pointed out in a 2007 review of the administration of the Health requirements of the Migration Act,[1] that the Department of Immigration (then, DIAC) did not have the technology in place, nor any sort of adequate information-gathering structures, to determine the actual cost of the migrants who had been granted or refused visas, and put in place recommendations that would enable the Department to collect such data.  The Department has still not put in place those recommendations for data gathering.

In 2019, Estrin Saul Lawyers, a law firm specialising in health and disability migration cases, requested information on the number of applicants who failed to meet the health requirement, the number of health waivers granted, and health costs attributed to those granted health waivers between 2015-2018 via Freedom of Information. The Department of Home Affairs advised it did not hold that information. 

It is imperative that the government put in place structures which would help quantify the financial impact of relaxing the health requirement.

In 2018, the Canadian government undertook an exercise in quantifying migration health costs across federal and provincial health jurisdictions and determined that, contrary to widely held belief, the cost of admitting migrants with disability and health issues did not impact significantly on state budgets compared to the costs of other migrants and Canadian residents. The Canadian government consequently reviewed its migration health requirements in line with contemporary international attitudes toward the rights of people with health and disability issues.

As part of any meaningful review of the health requirements, a similar audit should be conducted in Australia to ascertain the actual costs of permitting individuals with health and disability issues to enter Australia. While cost should not be the sole determinant of policy in this area, a realistic understanding of the actual costs of migrants with health and disability issues in comparison to any Australian resident, is an essential starting point for assessing the impact on Australia’s health and community services and, as in Canada, would serve as a more realistic basis for setting the threshold for ‘significant costs’.

[1] The Auditor-General, ‘Administration of the Health Requirement of the Migration Act 1958’, Audit Report No. 37 2006-2007, Performance Audit, Australian National Audit Office