“It’s a breach of human rights” say those who have been lobbying the government for years to reform a rule that prevents some people with disabilities from staying permanently to Australia.
Siyat Abdi had been living in Australia for more than 10 years when he was told he had 28 days to leave the country.
Because he is blind, Dr Abdi had not passed the government’s immigration health criteria, which dictates that an applicant for permanent residency must be free from a disease or condition which “would be likely to require health care or community services".
“I had a very bad experience with the health criteria regulations,” Dr Abdi, who is originally from Kenya, told SBS News.
“If you have a physical disability and you fail the health criteria then you are equal to a passenger who has a communicable disease such as tuberculosis. Which is not a fair assessment of the individual.”
In 2016, Dr Abdi, who has been blind since birth, lobbied the then immigration minister Peter Dutton to intervene, after spending thousands of dollars in lengthy and complex appeals. He was eventually granted permanent residency thanks to ministerial discretion, but the damage had already been done.
“You cannot quantify the pain and psychological impact it had on me and my family,” he said.
You cannot quantify the pain and psychological impact it had on me and my family.
- Siyat Abdi
Dr Abdi is one of several migrants with a disability who have had their visa applications rejected, despite a 2010 parliamentary inquiry that found the requirement was discriminatory to people with a disability and in need of urgent reform.
According to advocacy groups, up to 15 families are being threatened with deportation in Australia every year due to the immigration requirement that includes people living with disabilities alongside those needing medical care.
A number of cases of families with children with disabilities being told they had to leave have garnered widespread attention in the media recently, including 18-year-old hearing-impaired student Kinley Wangyel Wangchuk. But Dwayne Cranfield, CEO of the National Ethnic Disability Alliance (NEDA), told SBS News they are not isolated incidents.
“I would say, on average, that we probably see between 10 and 15 of these cases a year … but there are many, many more that don’t make it to us,” Mr Cranfield said.
“We are talking about people that are generally isolated, there are language issues, there are cultural issues ... It’s difficult for CALD [culturally and linguistically diverse] people in this space.”
NEDA - the peak national body for CALD Australians with a disability - said they have seen people with a broad range of conditions be affected, including those with down syndrome, autism, and physical disabilities, such as blindness and deafness.
According to Mr Cranfield, NEDA submitted a freedom of information request to the government in 2016, asking for statistics on the number of people who had been asked to leave under the regulation. They were told numbers were not collected.
“If you’ve come here seeking a better life and you are working here, and all of a sudden you have the situation where you have a child with a disability or an illness or something occurs to your partner, and then the government medical officer says ‘I’m sorry it’s time for you to go’ - how do you fight that if you’re not empowered?” Mr Cranfield said.
Cost vs benefit
Migration laws are exempt from the Disability Discrimination Act 1992, which outlaws the “discrimination against persons on the ground of disability”.
“Essentially it boils down to an algorithm that looks at the cost and the benefit of people coming to Australia. If they are deemed to be too costly to the Australian community they are denied residency,” Mr Cranfield said.
“We don’t look at the skills, strengths and beauty that people with a disability bring to our community, we look at them as a burden.”
We don’t look at the skills, strengths and beauty that people with a disability bring to our community, we look at them as a burden.
- Dwayne Cranfield, NEDA
But Mr Cranfield said it isn’t just an issue under the current government — it’s been going on a long time.
In 2001, a Pakistani refugee - who had been granted refugee status in Australia - set himself on fire outside Parliament House after the third application for his wife and three young children to Australia was rejected due to one of his daughter’s having cerebral palsy.
Shahraz Kiane died of his injuries weeks later.
SBS News is aware of at least three more cases of families currently fighting deportation under the requirement. This includes a Western Australian family who, as reported by the ABC, believe their two-year-old son - who suffers from severe haemophilia - will face early death if forced to return to the Maldives.
“What we are saying is his life isn’t worth $40,000 and I find that obscene … that we would do that in 2019,” Mr Cranfield said.
Dr Abdi, who is an officer at the Ethnic Disability Advocacy centre in Western Australia and previously lectured students in South Australia, believes the requirement is a “punishment for a person with a disability” and their family.
"It [the health requirement] doesn't consider the contributions that you can make to the society. And that is the most challenging part of it.”
Once an applicant has been rejected, ministerial intervention is an applicant’s last chance of relief and is only possible after a lengthy appeals process.
"Ministerial intervention powers exist in the Migration Act. These powers allow the minister to intervene in cases which present unique and exceptional circumstances and where it is considered in the public interest to do so," the Department of Home Affairs told SBS News last week.
But while ministerial intervention is often deployed, such as in the case of Dr Abdi and Mr Wangchuk, the 2010 report found it was being overused due to the restrictive regulation that does not allow for discretion during the earlier stages of the application.
Connections at the top
Experts also believe the mechanism unfairly benefits well-connected prospective migrants.
Mary Crock, a professor of public law at the University of Sydney, an immigration lawyer and one of Australia’s leading experts in the field, told SBS News the system can favour individuals who are able to find a way to lobby politicians to relax the rules.
“It shouldn't be like that,” she said.
“You shouldn't have to know somebody prominent to get a just result.”
Mr Cranfield said representatives from NEDA will be heading to Geneva later in the year to discuss these issues with the UN.
“It’s a breach of human rights, it is a breach of the CRPD [Convention on the Rights of Persons with Disabilities], it is discriminatory. That you can discriminate against a person because of their disability,” he said.
A Coalition campaign spokesman told SBS News “the current migration health framework is pragmatic and balances compassion and cost containment by imposing a standard health requirement for visa applicants while making health waivers available for some visa and, where appropriate, ministerial intervention.”
If you are struggling mentally contact Lifeline crisis support and suicide prevention on 13 11 14 or visit lifeline.org.au.