Migration

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.