Another day, another petition.
Santiago
Velasquez is the latest to hit my inbox.
Santi, as he is known to his
friends, is a 20 year old engineering student at Queensland University of
Technology. He was born in the foothills of the Andes in Columbia and after
coming to Australia, Santi quickly learned English and was elected Vice Captain
to his school in 2014. He did true blue Aussie things like completing the 55 km
Oxfam Trail Walker and both the 48 km and 96 km Kokoda Challenge for charities.
He was selected for a number of engineering challenges at regional, state and
national level.
What makes this all the more impressive is that Santi has an
eye condition which leaves him with no vision in one eye and about 3% in his
other. But there also lies the crux of Santi’s problem.
For the last 5 years, his family have been trying to apply for
permanent residency. They would eventually like to become citizens.
But because if Santi’s vision problems, he is deemed a “burden
to society” and too much of a cost to allow in. So here is a bright kid with a
great future, an all round asset to our country. Denied entry because of his disability.
As is his entire family.
Santiago is not the only person caught out like this.
Here are a some names of recent cases and stories: Simran
Kaur Dr. Bernard Moeller and his son Lukas, Maria
Sevilla and her son Tryone. There are plenty more.
How can this happen, in a country that has, since 1992, had a Disability
Discrimination Act 1992 (Cth) (DDA) which makes both direct and
indirect discrimination against PwD and their family members illegal?
The DDA is
subject to significant range of exception, some inherent to having a
disability, and some based on the idea that non-discrimination would incur
“unjustifiable hardship”.
Furthermore, s 52 of the DDA
exempts ‘(i) the Migration Act 1958; or (ii) a legislative instrument
made under that Act’.
This means, in effect, that the Australian government has legislated
to allowed itself to discriminate people on the basis of their disability for
migration purposes.
In fact, our very own Graeme Innes, once Disability
Discrimination Commissioner, would not be allowed to migrate to Australia. Or
would eminent professor Ron McCallum. Or Louise Sauvage, Kurt Fearnley, Luckily
they were born Australian citizens, But people like Steven Hawkins. Hellen
Keller. David Blunkett. Christopher Reeves. Ludwig von Beethoven. Stevie Brown.
Just some of the people – and their families - Australia would reject.
How is it done? Let’s have a look at this in some more detail.
The Migration Act 1958
(Cth) section 5(1)
(a)
relates to the applicant
for the visa, or the members of
the family unit of that applicant (within the meaning of the
regulations); and
(b)
deals with:
(i)
prescribed disease; or
(ii)
a prescribed kind of
disease; or
(iii)
a prescribed physical or
mental condition; or
(iv)
a prescribed kind of
physical or mental condition; or
(v)
a prescribe kind of
examination; or
(vi)
a prescribed kind of
treatment;
The details are regulated in the Migration Regulations 1994 (Cth) where Schedule 4 lists Health
Requirements (called Public Interest Criteria in the Regulations). Applicants
need to be free from tuberculosis or any other contagious disease that is a
threat to public health in Australia, and comply to two “limbs” of a cost
requirement. They need to be free from a disease or condition that would impose
significant costs to the Australian community (“limb 1”) or prejudice the
access to such care for Australian citizens and residents (“limb 2”).
The provisions operate regardless of whether these services will
actually be used by the applicant; they apply to all family members of the visa
applicant - even if that family member actually has no intention to ever
migrate to Australia (“one fails all fail”); the threshold cost is determined
over an applicant’s lifetime - which makes
it virtually impossible for disabled children to comply; and this is a cost
analysis only. It does not take into account the contribution the potential
migrant and their family members make.
These requirements apply to almost all visa applicants in some
form or another – there are slight variations for different visa categories,
and some are open to a waiver. They even apply to refugees who were maimed or
tortured - surely the most vulnerable and deserving of all humanitarian
migrants.
There are some prejudiced and inherently discriminatory
assumptions underlying the current approach to the health requirements.
- Disability is fundamentally different from disease. There are
plenty of PwD who are otherwise perfectly healthy.
- The provisions operate regardless of whether these services
will actually be used by the applicant.
- The Health Requirements apply to all family members of the
visa applicant – regardless of whether the family member actually intends to
migrate to Australia or not (“one fails all fail”). This has far-reaching consequences
– and in some cases, resulted in further disadvantage, trauma, or even human
rights violations. Extended family members, or children from a first marriage,
have been barriers for people. Family members with disability have been left
behind or institutionalized before visa application. Women and children are
particularly vulnerable.
- The threshold cost is determined over an applicant’s lifetime.
Prescribed by Department of Immigration and Citizenship and currently (2014)
set at $40,000.This makes it virtually impossible for disabled children to
comply
- This is a cost analysis only. It does not take into account
the contribution the potential migrant and their family members make. Not does
the cost argument make any internal sense. If cost was truly the deciding
factor, then why not “cost” all migrants? Why do we cost someone with a
disability but not a smoker? Conversely, if cost is really the screening
factor, why can a visa not be granted when people undertake to self-finance all
disability-related costs?
In addition, this approach is in clear contravention with our
obligations under the 2006 UN Convention on the Rights of Persons with
Disabilities (CRPD).
Although not directly enforceable on state parties, the CRPD requires
that state parties ensure laws do not contravene its obligations for
non-discrimination and requires state parties ensure that domestic law and
government programs are in harmony with obligations under the Convention.
The Health Requirements contravene Article 4, 5 of the CRPD, as
well as article 18, which states that PwD ‘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 proceeding, that may be needed to
facilitate exercise of the right to liberty of movement (…).’
The United Nations Human Rights Committee established a
“Proportionality Test” that different treatment does not constitute
discrimination if ‘the criteria for such differentiation are reasonable and
objective and if the aim is to achieve a purpose which is legitimate under the
[International] Covenant [of Civil and Political Rights]’ (HRC 1989). The
Health Requirements do not comply with the Proportionality Test.
Article 4(1)(b) of the CRDP
states ‘take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices that constitute
discrimination against persons with disabilities’. The health requirements are
applied only to people with disease and disabilities and are additional
criteria that are not required of other visa applicants. By failing to
differentiate between disease and disability, the health requirements fail the
proportionality test. CRDP and DDA already allow some exemptions. DDA mentions in s 48 that it is not
unlawful “for a person to discriminate against another person on the grounds of
the other person’s disability if the person’s disability is an infectious
disease; and the discrimination is reasonably necessary to protect public
health” which would more than correlate with limb 2 reasoning for Health
Requirements, while allowing for a cost/benefit analysis.
How can this be remedied?
- Update Health Requirements to assess costs only of services
that will actually be used by the applicant (not by not hypothetical person).
The Australian Government has previously supported this in principle and stated
it will be reviewed as part of a proposed overall health requirement. But no
action has been taken.
- Remove “one fails all fail” criterion. The government previously
said it will review this in favour of a ‘net benefit approach (which) would
consider the likely benefit of a whole family unit’ (see Government Response 6 in Australian Government ). But hasn’t acted
accordingly.
- Separate diseases and medical conditions from disability in
the Health Requirements.
- Amend the Health Requirements to evaluate cost/benefit rather
than only cost. The government has supported this idea in principle and began
feasibility assessment in 2012. A report was due in 2013 – I have not managed
to find any trace of it.
- Update Health Requirements to apply a full cost/benefit
assessment to every migrant, not just those with ‘conditions and
diseases’.
But most importantly:
- Remove the Migration Act
exemption from the DDA (remove s 52
of DDA), as would be required under
article 4 (1)(b) of the CRPD.
- Fully enable CRPD into domestic legislation.
Only then will Australia no longer discriminate against migrants
with a disability, and be in line with its own and international legislation.
And I won’t have to sign those endless petitions anymore.
For more information:
Elizabeth Waldeck and Robert Guthrie, 2007, ‘Disability
Discrimination and Immigration in Australia’, International Journal of Discrimination and the Law 8, 219. Although written before the CRDP, it provides a useful overview of
the legal and social / human rights issues.
Joint Standing Committee on Migration, Parliament of Australia,
2010, Enabling Australia – Inquiry into the Migration Treatment of
Disability – a detailed
analysis of disability and migration and recommendations to remove
discriminatory elements from it.
Australian Government, 2012, Australian
Government Response to the Joint Standing Committee on Migration Report:
Enabling Australia – Inquiry into the Migration Treatment of Disability.
UN Human Rights Committee (HRC), 1989, CCPR General Comment
No. 18: Non-discrimination, 10 November 1989, available at: http://www.refworld.org/docid/453883fa8.html.
National Ethnic Disability Alliance, refugees
and migrants with disability, 2010, Joint statement on the report from the
joint standing committee on migration into the migration treatment of
disability, released 21
June 2010, available from http://www.neda.org.au/index.php/latest/25-refugees-and-migrants-with-disability.
