Tue Oct 24

A migration review could close some disability discrimination loopholes – but not for people already waiting or refused visas

Written by Jan Gothard, Adjunct Associate Professor, Murdoch University

The government and the Greens have agreed to a review ^[1] of the significant cost threshold. It is the backbone of Australia’s migration health requirement, which all applicants for Australian visas are required to meet.

The threshold is used to refuse visas if an applicant or their child has a health condition or disability likely to incur “a significant cost to the Australian community” to treat or support.

Those who recall the many recommendations of the 2010 Inquiry into the Migration Treatment of Disability ^[2], which were never implemented, will question whether yet another review will bring change. An open letter ^[3] signed by more than 100 disability and human rights advocates earlier this year called for immediate reform rather than further review.

But Home Affairs Minister Clare O'Neil and Immigration Minister Andrew Giles both acknowledge the current migration health framework is broken ^[4]. Community consultation with disability advocates is underway – so there is reason to hope this review might be different.

How much is too much?

The significant cost threshold ^[6] is set at $51,000 over a maximum period of ten years. Visa applicants whose costs are predicted to exceed that limit will fail the migration health requirement and may be told to leave Australia.

Other countries are more generous.

The Canadian significant cost threshold is set at three times the Canadian average cost for health and social services ^[7]. In 2022, the amount was C$120,285 (A$138,692) over five years, or C$24,057 (A$27,738) per year.

New Zealand’s significant cost threshold is now NZ$81,000 (A$74,792) over five years.

The Australian Institute of Health and Welfare’s most recent report into our national health expenditure (made up of medical and hospital costs) suggests it is currently about A$7,900 ^[8] per person per year.

That figure does not include disability services or other community services such as education support, which are all included in assessment of the significant cost threshold.

On that basis, $51,000, or just 64.5% of the average community cost of health care for Australians over a ten-year period, seems extraordinarily meagre and certainly not “significant”.

Education support is where many applicants with a child with disability hit a brick wall. Whereas the cost of both “regular” education and English as a second language is deemed a community investment, “special” education support is considered a cost. Any child assessed as requiring such support for more than two years will fail the migration health requirement. The fresh review will address this inequity.

The review will also look at the situation of families living in Australia on temporary visas who then have a child born with a disability or health issue. They are subsequently refused a permanent visa for which they would otherwise be eligible.

illustration shows one person climbing out of a ditch while another person in a wheelchair can't cross it

Recommendations from a 2010 review have not been followed through and inequity remains. Marcus Fernihough, Author provided (no reuse)

Arguing for waivers

Some visas enable an applicant to argue for a “waiver” or to set aside the migration health requirement, on the grounds that the social and economic benefits they bring to Australia outweigh the costs. The process is protracted and painful. One applicant ^[10] wrote:

This process was incredibly invasive, for me, my immediate family and my broader family. I was forced to ask my wider family for very intimate financial information, and then supply that information to the government […] The very fact that my family and I had to go through this process was quite demeaning.

Another applicant ^[11], whose child was born here, noted:

The whole process is emotionally draining and is constantly at the back of our minds […] Having our child being seen as burden in the very community that we are actively contributing in is very unfortunate.

Waivers are available for a select range of visas and to about half of all visa applicants. For the other 50% of applicants – including people applying for general skilled migration visas and even those invited by state governments to fill jobs in high demand – there is no opportunity to argue for a waiver; the visa is simply refused.

Aneesh Kollikkara and Krishna Aneesh, both working in Western Australia in critical industries, were refused permanent visas ^[12] because their son has Down syndrome. They were finally granted visas after the federal immigration minister intervened in 2023.

Similarly, Qasim Butt was on track for a permanent skilled visa until his son was born with a life-threatening health condition. The family’s visa was refused in 2017 ^[13]. Their son was unable to depart Australia because of his condition and the family requested ministerial intervention. This was acted upon days before the federal election and granted more than five years later.

Too late for some

The 2010 inquiry argued all visa applicants should have the opportunity to demonstrate that the benefits they bring to Australia outweigh their notional community costs. The government committed to this “in principle”^[15] but failed to see it through.

Minister Giles has said ^[16] “any child born in Australia and adversely affected by the migration health rules can apply for ministerial intervention after merits review”. He has promised to prioritise such cases. But under current guidelines, ministerial intervention cannot take place until an obligatory, tedious and expensive journey through refusal at the department level and then an appeal. Long Administrative Appeals Tribunal ^[17] delays might mean families spend years in limbo, waiting for a decision.

This review has great potential to improve the circumstances of future applicants for visas. For that reason alone is to be welcomed. However, it does not help those applicants still waiting for a decision or whose visas have already been refused.

While we do not yet know the full terms of reference, a review which fails to address the fact that the Migration Act is exempt from the Disability Discrimination Act and is at odds with the United Nations Convention on the Rights of Persons with Disability ^[18] still leaves gaping loopholes.