I have the clearest memory of visiting the Immigration Museum in Melbourne when I was about 17 years old. One of the activities was a migrant application exam. You entered a darkened room and chose a scenario from the screen. My godmother and I decided to be a Greek family fleeing post-war Europe. The object of the game is to try and get a visa to Australia. We failed because the daughter of the family was blind.
It was a powerful experience, simulated though it was, and it’s been on my mind recently. The Joint Standing Committee on Migration is in the process of holding public consultations as it deliberates whether the health requirement in migration processes is fair.
Public meetings will take place in capital cities over the coming months to canvass the issue with the community and to hear more from experts and interest groups. It’s been a long time coming for groups such as the National Ethnic Disability Alliance (NEDA) and the Multicultural Disability Advocacy Association of NSW (MDAA).They argue that the health requirement is discriminatory and are campaigning for transparent processes that balance the cost of medical provision for someone who fails the health requirement with their potential contribution to the economy.
When you apply for a visa to Australia as a migrant or a refugee, you undergo a health test where your "cost" to the Australian economy is assessed. If you "cost" too much, your visa application can be rejected. As the Department of Citizenship and Immigration’s fact sheet states, the health requirement is in part designed to "contain public expenditure on health and community services, including Australian social security benefits, allowances and pensions" — as well as to minimise public health and safety risks.
In 2007–2008, at least 240 people were refused a visa on the basis of a health condition of which at least 70 were refused because of some form of disability. A further 442 people were turned down because of the health condition of a family member. Under immigration law, all family members must satisfy the health requirement for a family’s application to be accepted.
This new focus on the health requirement has been spurred, in part, by the recent media attention given to the cases of Bernhard Moeller and Ryan Dekker.
Ryan Dekker is an IT specialist from South Africa. Ten years ago he was shot through the spine, an injury that resulted in quadriplegia. Dekker can drive and has weaned himself off medication. He says he will not cost the Australian government any money.
Last month, however, Dekker was denied a Skilled Independent Visa on the grounds that he would be too much of a drain on the Australian economy. The fact that he would bring skills sorely needed in Australia was not enough to warrant a waiver of the health requirement.
Bernhard Moeller is a doctor in Horsham, a town in country Victoria. He is the only internal medical specialist servicing the 20,000 inhabitants of the area. In November 2008, he was denied a permanent visa because his 12-year-old son has Down Syndrome. After his case was widely reported in the media, the Minister for Immigration intervened and Dr Moeller was granted a permanent visa — but not before he had to undergo a lengthy process before the migration tribunal.
Submissions already received by the Joint Standing Committee on Migration confirm that the health requirement has split up families — and has even meant that disabled family members have been left behind. Those who have some form of disability and do manage to get a visa will face a 10 year wait before they can access government services — as opposed to the two year wait for other migrants.
The risk of communicable diseases has long been invoked by immigration officials keen on health checks. Health checks have justified detention centres and soothed the worries of a nation concerned about the spread of disease. Yet of the 240 people refused visas in 2007–2008, only two were refused because of tuberculosis. Twenty-two per cent of applicants were refused visas on the grounds of being HIV positive, decisions which demonstrate no regard for the advances in medicine that have made HIV a manageable condition.
If we insist on judging visa applicants in terms of cost, migration processes should surely take into account such advances. A person with HIV with access to anti-retro viral drugs now has an equal working life expectancy to someone who is free of the virus. And in the case of a family rejected because of a member who does not meet the health requirement, the economic contribution of the family will outweigh the cost of care. Indeed, in their submission to the Joint Committee, NEDA estimated that even if every person whose visa application was rejected on the grounds of health in 2007–2008 cost the government $1 million over their lifetime, the Australian economy would still make a significant gain.
Furthermore, it should not be necessary to reassert the obvious point that living with a health condition or disability and making a contribution to the economy are not mutually exclusive. Nowhere does the health requirement acknowledge that people with disabilities make positive contributions to Australian society.
The health requirement sits in a fairly uncomfortable relationship with Australia’s international human rights obligations — like the Convention on the Rights of Persons with Disabilities and the Convention Relating to the Status of Refugees. The legislation should acknowledge that disability may be a particular issue for refugees and may itself be grounds for asylum. Currently, as the Moeller case reminds us, children are not excluded from the health requirement. The break-up of families or the refusal of a visa because of a child’s disability contravenes the Convention on the Rights of the Child.
Don’t we have legislation in place to prevent discrimination against people on the grounds of disability?
Yes, but when it comes to assessing visa applications, the Disability Discrimination Act is suspended. And the suspension of the Racial Discrimination Act to enable the Northern Territory Intervention is a good reminder that when legal protection against discrimination is suspended, it’s usually a pretty good indication that discrimination is occurring.