After a hearing-impaired teenager was finally granted the right to stay in Australia, SBS News has found a 2009 bipartisan inquiry - that included Scott Morrison - ruled the Australian immigration health requirement to be discriminatory.
Australia’s immigration system unfairly discriminates against migrants with a disability and their families, a parliamentary inquiry found in 2010, but numerous families continue to face deportation under the controversial health requirement.
“Australia needs a modern migration health assessment, with scope to positively recognise individual or overall family contributions to Australia and that takes into consideration development of contemporary medicine and social attitudes,” said former Labor MP Michael Danby, who was the chair of the joint standing committee on migration, as he handed down the report in June 2010.
But nearly 10 years after the inquiry was launched, many of the inquiry’s 18 recommendations do not appear to have been implemented and advocacy groups say they see up to 15 families facing deportation from Australia every year due to the government declaring their disability will cost the taxpayer too much.
Australia's immigration health requirement prevents any prospective migrant with an illness, disease or intellectual or physical disability from obtaining a visa if it is deemed their condition will be too costly or put the general public at risk.
“They don't make any differentiation between a person with a medical condition and one with a physical disability,” said Mary Crock, one of Australia’s leading immigration law experts, in an interview with SBS News.
“It is really patently discriminatory on grounds of disability, contrary to all our international obligations.”
They don't make any differentiation between a person with a medical condition and one with a physical disability.
- Mary Crock, Law professor
All visa applicants - including temporary and permanent - are subject to the health requirement, outlined in the Migration Regulations 1994, which the government states has three main aims: to prevent the spread of infectious diseases such as tuberculosis, to ensure Australians do not miss out on in-demand medical services like organ transplants, and prevent the taxpayer from paying for expensive medical and community services.
But advocates argue the requirement unfairly targets people with a disability because how much a person would “cost” the government is calculated based on a hypothetical person. It doesn’t take into account whether the support services will actually be used, the applicant or their family’s ability to contribute financially to their care, or their social and economic contribution to the community.
‘Ten years on, we really are in the same boat’
The debate hit the headlines in April when a Bhutanese family with a hearing-impaired son fought publically to stay in Australia after their application for permanent residency was rejected on the basis of his disability.
After years of appeals, and being told they would have to leave within weeks, Immigration Minister David Coleman personally overturned the decision last week, allowing them to stay.
SBS News is aware of at least three more cases of families currently fighting deportation under the requirement.
But many of these ongoing concerns were comprehensively addressed when the bipartisan parliamentary inquiry, launched in August 2009, aimed to resolve the fact that “the current Health Requirement reflects old-fashioned approaches to disability” and “unfairly discriminates against those who have a disability”.
Prime Minister Scott Morrison was also a member of the committee that undertook the inquiry. Mr Morrison’s office declined to comment directly and instead issued a statement from a Coalition campaign spokesman.
In response to the inquiry, a report titled ‘Enabling Australia: Inquiry into the Migration Treatment of Disability’ outlined recommendations that addressed a number of concerns from immigration law specialists and disability advocates.
But South Australian lawyer and vice president of Australian Lawyers for Human Rights Natalie Wade told SBS News that “ten years on, we really are in the same boat.”
Have any of the recommendations been addressed?
According to Ms Wade, the only “slight reform” to come out of the inquiry in practice was the increase of the significant cost threshold.
This refers to the dollar figure dictated by government policy that determines whether a migrant will pass the health requirement. Currently, the figure is $40,000.
This means that if a Medical Officer of the Commonwealth (MOC) determines a hypothetical person with the same condition as the applicant could need access to $40,000 or more worth of medical and community services — whether or not the applicant will actually use them — they will not pass the health requirement.
At the time of the inquiry, the threshold sat at just $22,000, with Mr Danby stating that potential migrants with disabilities and their families were treated as “costs to our society”.
In November 2012, the Labor government handed down its response to the report and agreed to raise the significant cost threshold to $35,000 in “line with current health expenditure”.
In the same response, it committed to further investigate the feasibility of a ‘net benefit approach’ which would “drastically change” the way the health requirement operated. This would involve assessing the applicant’s likely financial contributions to Australia to offset the health costs.
The government also made it easier for refugee and humanitarian visa applicants to obtain a health waiver.
But key recommendations, including that decision-makers be allowed to consider the potential economic and social contributions of a person, that diseases be assessed separately to disabilities, and that decisions be made on whether the services will actually be used and the removal of the ‘hypothetical person test’, have still not been met.
In recommending that the ‘hypothetical person test’ used for calculating potential costs be removed, the committee wrote that it “did not support the current approach” and found it “unjustly discriminates against those with a disability who are productive and contributing community members”.
But Coalition government policy underpinning current regulations makes clear that a MOC must take into account the services that a “hypothetical person with the same form and level of the applicant’s condition would be eligible” — even if the applicant has no plans or need to use them.
‘One fails, all fail’
Dr Crock, who provided submissions to the inquiry in 2010 with her husband Professor Ron McCallum AO, who is blind, said “no attempt is made to actually measure” whether a person will draw on Australian resources.
“If you are a millionaire and you put up a bond to cover the [medical] costs in advance you are still excluded,” she said.
“It's not in our national interest because it's one in, all in, and we are excluding some very highly-skilled, high net worth individuals who've got family members [with a disability].”
In their 2012 response, the Labor government also agreed to review the ‘one fails, all fail’ rule, to remove “prejudicial impacts on people with a disability”.
But under current Coalition policy, the ‘one fails, all fails’ rule means that if a member of a family is rejected under the health requirement, the entire family unit faces the same fate.
And despite all this, even if a migrant is granted permanent residency there is a 10-year waiting period before they are able to access government disability support.
Greens senator and disability advocate Jordon Steele-John, who uses a wheelchair due to cerebral palsy, told SBS News the section of law needs to be urgently addressed after the federal election this weekend.
“I think what we’ve seen since 2010 is that the bare minimum has been done to make the issue go away. But the core of the problem, the idea that there still exists this concept of burden, this idea of disease in our immigration law framework, that hasn’t been addressed,” he told SBS News.
“These are people who have ‘done the right thing’ and are often in many cases, ready, willing and cannot wait to make incredible contributions to Australia and are being ripped apart by a nonsensical law.”
How does Australia compare with the rest of the world?
Dr Crock said Australia’s health requirement was out of step with the rest of the world.
Many countries have done away with disability migration restrictions, most recently Canada who moved last year to remove the entry barriers for migrants with intellectual or physical disabilities.
"These newcomers can contribute and are not a burden to Canada," Canadian immigration minister Ahmed Hussen said in April, 2018.
In the 2010 report, Canada’s immigration system was listed as comparable to the Australian model.
The EU has also removed any discrimination on the basis of disability from its migration law in keeping with its Charter of Fundamental Rights.
Many advocates and experts point to the fact that Australia is a signatory to the UN’s Convention on the Rights of Persons with Disabilities (CRPD) - which bans discrimination on the basis of disability - as evidence Australia is shirking its international responsibilities.
“There is a massive need for reform across migration in terms of how harsh it is and what it is doing to people,” Dr Crock said.
If re-elected this weekend, West Australian Senator Steele-John said he would swiftly move to introduce legislation reforming the requirement.
“There is no place for the idea of financial burden in relation to disability in our migration law,” he said.
“I think we need to have a situation where disability plays no part in the question of whether you can call Australia home.”
Both Labor and Coalition spokespeople declined to comment on whether the parties would support reform to the immigration health requirement if elected this weekend, or why the full list of recommendations from the report had not been implemented.
“All visa applicants must meet all relevant health, security and character requirements,” a Labor spokesperson said.
A Coalition spokesman said the current migration framework was “pragmatic and balances compassion and cost containment by imposing a standard health requirement for visa applicants, while making health waivers available for some visas and, where appropriate, ministerial intervention.”