An under-discussed feature of Australia’s migration system is its problematic treatment of visa applicants with disabilities. Australia’s Disability Discrimination Act aims to protect individuals from unfair treatment on the grounds of their disability, however, this does not extend to those seeking certain visas in Australia.
In the following article, originally published in the ACT Law Society Journal, ethos*, Dominic Cookman, Associate at Snedden Hall & Gallop, discusses some recent cases that demonstrate that discrimination on the grounds of disability is not unlawful under the Migration Act 1958 (Cth).
At present, to be granted certain visas such as, permanent residency visas, the Migration Regulations 1994 prescribe a number of “Public Interest Criteria” (PIC) that must be satisfied by both the applicant, and any family members migrating with them.
PIC 4005 and 4007 stipulate that the visa applicants must be free from a disease or condition in relation to which the provision of the health care or community services would be likely to:

  • Result in a significant cost to the Australian community in the areas of health care and community services or
  • Prejudice the access of an Australian citizen or permanent resident to health care or community services.

The application of these criteria can affect visa applicants who suffer from a disability in a disproportionate way.

What constitutes a “significant cost to the Australian community”?

The Department of Immigration and Border Protection (DIBP) currently implements a policy that deems “significant cost” to be $40 000** throughout the visa applicant’s stay in Australia (the length of their visa). The cost for permanent visa applicants is assessed over a five year period. A visa applicant whose projected care costs exceed this amount can be refused a visa on the grounds of failing to meet the Public Interest Criteria, unless they are able to obtain a waiver (in PIC 4005). Moreover, this cost ceiling applies regardless of whether the health care or community services will actually be used by the applicant.
Consequently, visa applicants with disabled children are regularly rejected for permanent residency on the basis that the projected cost of their care would exceed this threshold. Often at this point, their only recourse is to apply for intervention by the Minister for Immigration, which occurs very rarely.

The Disability Discrimination Act 1992 (Cth)

The Disability Discrimination Act 1992 (‘DDA’) prohibits differential treatment of a person on the basis of their disability.
Section 3 of the DDA sets out the objects of the Act, which seek to eliminate, as far as possible, direct and indirect discrimination on the grounds of disability across a wide range of areas, including employment, education, access to premises, and in the provision of goods and services.
However, discrimination on the grounds of disability is not unlawful under the Migration Act 1958 (Cth), as it is specifically exempt from the operation of the DDA.
There are few instances where the Disability Discrimination Act omits to protect certain groups of people. This clear exception to protect migrant families from disability discrimination places Australia in a position to revise the extent of discrimination on the grounds of disability.

How has this been applied in practice?

Let’s look at recent instances of visa applicants failing to meet these provisions.

Case 1

In 2013, a Sydney General Practitioner had her initial application for permanent residency rejected due to the prospective medical needs of her daughter who has an autism spectrum disorder. It was not until the Assistant Minister for Immigration, Alex Hawke intervened that the doctor and her daughter were granted permanent residency visas.  As can be seen, a decision which would be problematic or even unlawful in a domestic context was permissible, and not caught by the DDA.

Case 2

Similarly, in July 2015, a lecturer at a university in Melbourne, and his wife had their application for permanent residency denied due to their son’s autism diagnosis. Again, the reason given was that their son’s medical condition would be a burden on Australia’s health and welfare systems. This was despite the fact that the family had been living in Australia for nearly ten years and had paid for all of their son’s schooling and medical costs themselves. The Immigration Department’s decision was subsequently affirmed by the Administrative Appeals Tribunal (AAT). The family were only granted permanent visas in August 2016 after intervention by the Assistant Minister for Immigration, following a sustained campaign by the staff and students of the university. This demonstrates how discrimination on the grounds of disability against a particular group of people is permissible in Australia.

Case 3

In an example from 2008, a Victorian General Practitioner, and a German National, had his application for permanent residency denied on the basis that his son, who has Down Syndrome, would pose too much of a cost for Australia’s health and social service systems. A public outcry led to the eventual intervention of then Minister for Immigration, Chris Evans MP, to grant a visa.

The grace and favour of the king

There are many more instances where families have had their visa applications rejected on the grounds of their child’s disability being too costly for the Australian taxpayer. These are clear examples of the Disability Discrimination Act lawfully having no role to play with visa application matters.
You can also see that particularly deserving cases are routinely eventually gifted a visa by the Minister for Immigration.
The framework of Australian migration law often forces visa applicants with disabled children to rely upon emotional appeals to the whim of the Minister for Immigration, who may or may not choose to intervene to suspend the relevant Public Interest criteria. These applicants are thus denied certainty or consistency with respect to whether or not they will be granted visas.
This issue was the subject of a 2010 Parliamentary Inquiry into the Migration Treatment of Disability. The Parliamentary Inquiry resulted in a number of recommendations that the Government considered. One of which was the increase in the significant cost threshold to $35,000 which has since risen to $40,000.  This was a welcome result, but is hardly generous in the context of a lifelong severe disability.

Conclusion

The cases above highlight the inconsistency between the Disability Discrimination Act and the Migration Act. Despite the Parliamentary Inquiry in 2010, the issue remains in need of a more satisfactory resolution.
There arguably remains considerable scope for Parliament to rethink how Australia’s migration system can deal with visa applicants who suffer from disabilities, and work toward a system that can accommodate both their dignity and Australia’s national interest.

How can Snedden Hall & Gallop’s migration team help you?

Our lawyers are registered migration agents and are members of the Migration Institute of Australia. You can contact us about a visa application or an appeal against a rejected application by email or by phone on (02) 6285 8000. Dominic Cookman is an Associate at Snedden Hall & Gallop and a registered migration agent (MARN 1789257). He also has a deep understanding of the Disability Discrimination Act.

*This article has been modified from it’s original publication in ethos, Issue 246, December 2017.
**Figure is accurate at time of publication.