Michael Danby (Melbourne Ports, Australian Labor Party) Share this | Hansard source

On behalf of the Joint Standing Committee on Migration, I present the committee’s report entitled Enabling Australia: inquiry into the migration treatment of disability, together with the minutes of proceedings and evidence received by the committee.

Ordered that the report be made a parliamentary paper.

This report follows on from a trilogy of migration detention reports released last year. This report is the fourth to be tabled by the Joint Committee on Migration in this parliament—a substantial achievement for all members of the committee involved and for a very able secretariat.

There have been a number of well-publicised cases in which Australia’s policies towards people with disabilities in the context of migration have been at issue. Two of the most well-known cases are the Moeller and Kiane cases. Dr Moeller was a German GP practising in rural Victoria on a temporary long-stay 457 visa. The Moeller family was refused permanent residency because of 13-year-old Lukas Moeller’s Down syndrome.

No waiver was available under the permanent skilled visa, PIC 4005, so the Migration Review Tribunal duly rejected the Moeller’s application for review of their case. However, following representation by members of federal and state parliaments and media attention, the case was quickly resolved. Luckily for Dr Moeller and his family, the minister exercised his discretionary power and was able to intervene and waive the health requirement in recognition of the compelling and compassionate circumstances, including Dr Moeller’s considerable contribution as a rural based medical practitioner to offset any undue costs.

Much more tragic was the case of Mr Kiane, an asylum seeker, who received protection in Australia in 1997. Upon receiving a protection visa he sought to sponsor his wife and children to join him. Mr Kiane’s split family protection visa application was rejected on the basis that the health requirement was not met by one of his children, an eight-year-old girl with cerebral palsy and epilepsy. The visa has a waiver consideration, PIC 4007, during which family members in Australia offered to guarantee financial and other support.

After four and half years in appeal, Mr Kiane subsequently set fire to himself in protest in front of Parliament House in Canberra in 2001. Tragically, he died of his injuries. In its report on the case the Commonwealth Ombudsman expressed, ‘Serious concerns about the fairness and professionalism of the decision-making process.’ It is with these sorts of seemingly unfair and tragic outcomes in mind that the committee wrote its report and made its recommendations.

The committee’s inquiry into the migration treatment of disability has important international origins. In 2008, Australia ratified the United Nations Convention on the Rights of Persons with Disabilities, the disability convention. This UN treaty proclaimed the rights and values of people with a disability as full and equal participants in society. This parliament is moving to address this issue, not solely because of the UN treaty, but because it is important for the national interests of Australia and for the fair treatment of people seeking to come here under its immigration program.

The migration health requirement set out in the Commonwealth Migration Act 1958 and its regulations is the means by which Australia assesses threats to public health brought from overseas and to contain public health expenditure. Every prospective migrant who wishes to visit or migrate to Australia on a temporary or permanent basis must pass this requirement.

The committee’s inquiry found that the migration health requirement places an undue emphasis on theoretical costs associated with a particular degree of disability, which disadvantages these applicants relative to others. Currently, if someone is identified as having a health condition, a first consideration is whether the identified level, or degree of the illness or condition will cost the community in excess of the ‘significant cost threshold’ beyond which the visa will be rejected. The second consideration is whether granting a visa will prejudice access to services in short supply for other Australians with the same condition.

Under this assessment the vast majority of visa applicants in this area—tens of thousands—are successful in passing the health requirement and in gaining a visa. However, the inquiry found that an inordinate number of applicants with a disability or with family members with a disability fail to meet the health requirement. While overall numbers were small—about 1,500—the impact on these families was great.

The committee heard from skilled nurses, doctors, scientists and academics who were unable to fill jobs in Australia while waiting for the applicants or that the applicants were being forced to leave after years in such jobs because they had a child with a disability. This is, as I said, not just simply a matter of compassion towards visa applicants. ( Extension of time granted ) Another group who were affected was Australian citizens who could not return home with a stepchild with a disability or reunite with family members left without carers overseas. Others were refugees whose family members were rejected because they had lost a limb under torture or through civil war.

The committee found that our present migration regulations explicitly assume disability or conditions associated with a disability will be a cost burden to the wider community. This is based on projected or theoretical costs of health care and community services and payments, such as the disability support pension, irrespective of whether these services would ever be used. In the vast majority of cases, no account is taken of the capacity of the applicant or applicant’s family unit to defray costs by care or economic contribution. Neither is there consideration of the economic or social contributions of a migrant or their family. This is an approach that the committee considers needs urgent rectification.

The 18 recommendations made by the committee in this report will support changes that will see the significant cost threshold and mode of assessment of disability updated to reflect the actual costs associated with conditions, and the costing methodology made public. Where a person does not meet the health requirement, a waiver discretion is more widely available to assess the social and economic contributions made by a visa applicant, and families have the opportunity to offset costs. Families are not unfairly disadvantaged under the health requirement as a result of a family member having a disability—the ‘one fails, all fail’ rule. In Brisbane we had two renal nurses from England who were unable to stay in Australia, despite the great shortage of nurses in the Queensland health system, because one of their children had a disability. These skilled migrants, desperately needed in Australia, had to leave. Finally, for offshore refugee visa applicants who have a disability or other health condition, visa waivers are considered for compelling and compassionate circumstances, especially for family reunion applicants. In particular, by providing greater discretion to migration decision makers at the beginning of the visa process, the committee’s recommendations should reduce reliance on the Migration Review Tribunal and ministerial discretion to resolve more difficult migration cases. Overall, this will make for a more efficient, more transparent and more compassionate visa consideration process, especially for people with disability.

A lot of the submissions we received argued that the current migration regulations only treat people with disabilities as a burden, not a benefit to Australia, costing Australia rather than enriching it. Many examples were cited of people with disabilities who have come to Australia and achieved great things. One of the cases we heard involved the principle researcher for a University of Western Australia/CSIRO project and his family. The family’s visas were rejected at first instance because the applicants’ four year old daughter had Down syndrome. A medical officer of the Commonwealth had judged at that time that the girl ‘would be likely to require additional educational resources beyond mainstream education’ and ‘supported employment in the future at significant cost to the Australian community’. In this particular instance, a couple of years later, the original decision was overturned by the Migration Review Tribunal. (Time expired)

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