Valuing People with Disability in Australia’s Migration Program

Mr Shahraz
Kayani set fire to himself on the front steps of Parliament House in Canberra
in 2001.  He died of his injuries
55 days later. 

Mr Kayani
had arrived in Australia from Pakistan in 1995.  He was accepted as a refugee by the then Department of
Immigration and Multicultural Affairs (DIMA) and granted a Protection Visa in
1996.  He became an Australian
citizen in 1999. 

However,
when Mr Kayani applied to sponsor his wife and three children to Australia his application
was rejected on the basis that one of his daughters had cerebral palsy. 

Mr Kayani
made a number of subsequent applications to DIMA, as well as a request to the
then Minister for Immigration. 
When these were unsuccessful he fell into a deep depression. According
to his brother, his last desperate act reflected his long-term frustration and
his loss of hope at ever being reunited with his wife and children. ⁽¹⁾

This case
provides a tragic example of the impact of Australia’s migration policies on
people with disability and their families.  All prospective permanent and temporary migrants are
required to meet the Health Requirement under the Migration Act 1958 (Cth). 
According to the Department of Immigration and Citizenship (DIAC) the
purpose of this requirement is to protect Australians from public health and
safety risks, to contain public expenditure on health care and community
services and to safeguard the access of Australian citizens to health care and
community services when they are in short supply. ⁽²⁾

The
majority of people who seek to migrate to Australia have little difficulty
complying with the Health Requirement. For others, it can be a very different
story.  The application of the
Health Requirement can lead to people with disabilities being separated from
their families, sometimes indefinitely, and left without support in situations
of immense political and social instability.  For their family members in Australia, the emotional,
financial and psychological effects of separation from loved ones can hinder
the resettlement process. 

In 2009,
the Federal Joint Standing Committee on Migration conducted an Inquiry into the
Migration Treatment of Disability. 
MHLSP solicitors Nancy Walker and Anne Mainsbridge wrote a joint submission
to the Inquiry on behalf of the Public Interest Advocacy Centre (PIAC) and the NSW Service for the Treatment and Rehabilitation of Torture and
Trauma Survivors (STARTTS). 

This joint
submission, Valuing people with
disability in Australia’s migration program, argued strongly that the
Health Requirement, which focuses on the cost of disability to the Australian
community, is unjust and at odds with Australia’s social inclusion policies and
its obligations under the United Nations Convention of the Rights of Persons
with Disabilities.

In
addition, the submission pointed out that the Health Requirement discriminates
against people with disabilities and their families, particularly those who are
refugees applying offshore. 

Because many refugees are fleeing situations of violence and war, it is
not uncommon for them to be physically injured (for example, through the
effects of landmines or torture) or to be suffering mental illness as a result
of their traumatic experiences. Many refugees also suffer poor physical and
mental health because of the conditions in refugee camps and years of having
little or no access to health care. 
As a result of these factors, the Health Requirement can be a
significant barrier to their prospects of resettlement in Australia.

The Joint
Standing Committee’s report, Enabling
Australia, was handed down in June 2010.  The report makes several references to the PIAC/STARTTS submission.   It also makes 18 recommendations
for change, a number of which are consistent with recommendations made by PIAC
and STARTTS.  These include :

• The adoption of a more
  contemporary Health Requirement for prospective and temporary migration
  entrants under the Migration Act
  1958 (Cth);
• Consideration of the social
  and economic contributions to Australia of a prospective migrant or a
  prospective migrant’s family in the overall assessment of a visa;
• Creation of a priority visa
  category for refugees who have sustained a disability or condition as a
  result of being a victim or torture or trauma.
• Changes to the assessment
  criteria, processes and waiver options of the Health Requirement. 
• Review of the Disability Discrimination Act 1992
  (Cth) (“the DDA”) with particular reference to the section 52 (which
  currently exempts the application of the DDA to the Migration Act, 1958 
  (Cth) and the Migration
  Regulations, 1994 (Cth)).

PIAC hopes
Australia’s new Federal Government will implement the Committee’s recommendations. 

Pictured: Immigration sculture, Melbourne. Photo courtesy of Nick Hewson at Flickr.