Disability Discrimination and Immigration in Australia
| DOI | 10.1177/135822910700800402 |
| Author | Elizabeth Waldeck |
| Date | 01 March 2007 |
| Published date | 01 March 2007 |
International Journal
of
Discrimination and the Law,
2007,
Vol.
8,
pp. 219-236
1358-2291/2007
$10
©
2007
A B Academic Publishers. Printed in Great Britain
DISABILITY
DISCRIMINATION
AND
IMMIGRATION
IN
AUSTRALIA
ELIZABETH WALDECK
and
ROBERT GUTHRIE
Curtin
University
of
Technology,
Western
Australia
ABSTRACT
In order for an application for migration to Australia to be successful, potential
migrants must meet various criteria, including specific requirements relating to
health. These health requirements may create a barrier to migration to Australia
for those who suffer from disability
or
disease. The Disability Discrimination
Act
/992 (Cth) makes it unlawful to discriminate against a person based
on
disability,
including disease. Significantly, the Disability Discrimination
Act
1992 (Cth) does
not apply to the Migration
Act
1958 (Cth). Therefore discrimination on the
grounds
of
disability in the administration
of
the Migration
Act
1958 (Cth) is
lawful. As a consequence
of
the Migration
Act
1958 (Cth) being exempted from
the operation
of
the Disability Discrimination
Act
1992 (Cth), many migration
applications have been lawfully refused due to the disability
of
the applicant
or
a member
of
the applicant's family. Recent cases have tested the validity
of
the
opinions
of
the Commonwealth Medical Officers who are required to provide
the necessary medical opinion upon which the migration application
is
determined.
The decisions
of
the Federal Court in Robinson and Ramlu, which are discussed
below, give new hope to future migration applicants. Both cases were decided in
favour
of
the applicant, holding
that
the medical opinions provided were invalid
under the relevant migration regulations because the Commonwealth Medical
Officer had assessed the applicant's disability based upon a hypothetical generic
person with the disease
or
condition
of
the applicant rather than having regard
to the particular circumstances
of
the applicant. These cases send a clear signal
to Commonwealth Medical Officers that they must now provide opinions based
upon a case by case analysis, having regard to the actual nature and extent
of
the applicant's condition, rather than an assessment based on the generic person
with the disease
or
condition. This paper examines these decisions in detail against
the background
of
Australian immigration policy and its effects on people with
disabilities.
INTRODUCTION
This
paper
explores the
interaction
of
migration
and
disability
discrimination
laws in
Australia.
The
Migration
Act
1958
(Cth)
(the Migration
Act)
regulates,
inter
alia,
the
arrival
and
presence
in
Australia
of
non-citizens.
The
Disability Discrimination
Act
1992
(Cth)
(the
makes
unlawful
discrimination
on
the
basis
of
220
physical, intellectual, psychiatric, sensory,
and
neurological
and
learning disabilities.
The
Migration
Act
is exempted from
the
DDA,
having the effect
that
it is
not
unlawful
to
discriminate
on
the
grounds
of
disability in
the
administration
of
the
Migration
Act.
This
paper
is divided
into
two parts.
The
first
part
presents a
brief
overview
of
the Migration
Act
and
the
DDA,
including a discus-
sion
of
the exemption
ofthe
Migration
Act
from
the
operation
of
the
DDA
and
a
summary
of
the Productivity Commission's submission
to
the government relating
to
the
exemption.
The
second
part
of
this
paper
explores
the
preliminary
health
requirements
to
be
met
by
applicants for
migration
under
the
Migration
Act
and
focuses
on
significant cases which have tested
the
lawfulness
of
the
administra-
tive processes involved in denying
entry
to
Australia
of
disabled
persons.
The
paper
concludes with some suggestions for reform
and
reflections
on
the
current
procedures.
THE
MIGRATION
ACT
1958
(CTH)
The
Migration
Act
and
its regulations1 regulate, inter alia,
the
arrival
and
presence in Australia
of
non-citizens,
and
the
selection criteria
and
application processes for all visa categories. Except for
New
Zealanders, migrants
must
apply for a visa
to
come
to
Australia,
the acceptance
of
which is determined by
the
Department
of
Immi-
gration
and
Multicultural
and
Indigenous Affairs
(DIMIA).
To
obtain
a visa, migrants
must
pass
health
and
character
checks
and
meet
certain
other
entrance
criteria.
There
are two
programs
aimed
at
assisting people
to
migrate
to
Australia: a
humanitarian
program
and
a
migration
program.
The
humanitarian
program
is for refugees
or
anyone
else seeking safety
or
asylum in Australia.
The
migration
program
covers all
other
persons
who
are interested in migrating
to
Australia.
There
are several categories
under
which
potential
migrants
can
apply for
an
Australian
visa
under
the
migration
program.
Generally these are:
• skilled migrants -people
who
have
particular
occupational
skills,
outstanding
talents
or
business skills;
• family sponsored
migrants
-those
who
are
sponsored
by a
relative
who
is
an
Australian
citizen
or
permanent
resident;
• special eligibility
migrants-
former citizens
or
residents
wanting
to
return
to
Australia,
or
certain
New
Zealanders.
The
Migration
Act
provides
that
the
regulations
may
prescribe
criteria for visas
of
specified classes.2 Regulation 2.25A generally
provides
that
in
determining whether
an
applicant satisfies
the
criteria for
the
granting
of
a visa, the Minister
must
seek
the
opinion
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