Discrimination within Australia's migration policy

Australia's migration policy is flawed by examples of discrimination against people with a disability or medical conditions, writes Suresh Rajan.

FROM THE HOME AFFAIRS webpage comes this statement:

'Australia’s Migration Programme does not discriminate on the basis of race or religion. This means that anyone from any country can apply to migrate, regardless of their ethnic origin, gender or colour, provided they meet the criteria set out in law.'

Additionally, in recent days (post-Anning), both major parties have expressed their bipartisan commitment to a non-discriminatory migration policy.

Bill Shorten said this:

Recognise that since 1973, successive Labor and Liberal National Party Governments have, with bipartisan support, pursued a racially non-discriminatory immigration policy to the overwhelming national and international benefit of Australia, and gives its unambiguous and unqualified commitment to the principle that whatever criteria applied by Australian Governments in exercising their sovereign right to determine the composition of the immigration intake, race, faith or ethnic origin shall never explicitly or implicitly be amongst them.

Malcolm Turnbull (former Prime Minister — remember him?) said:

We are a nation that does not define its nationality, its identity, by reference to race or religion or cultural background or ethnic background.

People from every corner of the Earth, from every religion – or of none – and every race can connect, be inspired by, be part of [our] values. That is Australia.

David Coleman will be sworn in as Australia’s New Minister for Immigration, Citizenship and Multicultural Affairs today following last week’s leadership spill. Read our insights on what this may mean for migration policy... https://t.co/5NMprcE9PV
— Interstaff (@Interstaff1) August 29, 2018

One area where we, as a nation and across party lines, have consistently discriminated relates to migration by people who may have some member of their family with disability (PWD) or a medical condition.

A review by Parliament of the health requirements of the Migration Act summarised the issues:

3.2 Historically, permanent migrants and temporary visitors have been subject to some form of Health Requirement since the Immigration (Restriction) Act 1901 (Cth). Essentially this prohibited the migration of persons with certain types of infectious or contagious diseases. It was repealed with the introduction of the Migration Act 1958 (Cth) (the Act), which is in force to the current day, although with significant amendments to the original statute. The Act, like its predecessor, contained a list of prescribed diseases which would exclude persons from migration. In addition to the Act, Migration Regulations were introduced in 1989 which prescribed new health criteria and removed all reference to prescribed diseases, with the exception of tuberculosis.

3.3 The Department of Immigration and Citizenship (DIAC) suggests that there are a number of reasons behind the need for a Health Requirement. These are to:

protect the Australian community from public health and safety risks;

contain public expenditure on health care and community services; and

safeguard the access of Australian citizens to health care and community services that are in short supply.

3.4 An applicant for a visa will be deemed “not to meet” the Health Requirement if they are considered a threat to public health in Australia (such as for having active tuberculosis) or where their disease or condition would result in significant cost to the Australian community or prejudice the access to health care by Australian citizens or permanent residents.

Migration: how many people are on the move around the world? https://t.co/6TCkMK78s7
— Guardian Australia (@GuardianAus) September 10, 2018

But we are also signatories to the U.N. Convention on the Rights of Persons with Disability (UNCRPD) which says:

Article 3 – General principles

The principles of the present Convention shall be:

Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

non-discrimination;

full and effective participation and inclusion in society;

respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

equality of opportunity;

accessibility;

equality between men and women; and

respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Article 4 – General obligations

States Parties undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:

to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;

to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;

to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;

to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; and

to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise.

Article 5 – Equality and non-discrimination

States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

Orienting our migration intake to regional Australia will require more than simplistic changes our migration policy.https://t.co/071giu8WRd pic.twitter.com/N3tLvOAJue
— hammondtaylor (@HammondTaylor_) September 10, 2018

The easiest way I can prove that we are in breach of these conventions is to examine some of the cases I have dealt with.

These are as follows:

Case 1: Dr Bernhard Moeller
Case 2: Dr Siyat Abdi Hillow
Case 3: Dr Cesar Sofocado
Case 4: Enamul Kabir
Case 5: Dr Nora Aziz
Case 6: Dora Carias
Case 7: Hassan Asif
Case 8: Zahra Ramadhani
Case 9: Maria Neville
Case 10: Angelo Fonseka
Case 11: Deb Winspear
Case 12: Clive/Jackie Ingram
Case 13: Kai Tippett family
Case 14: Biswajeet Banik family
Case 15: Bhajan Kaur
Case 16: Neville/Teresa Browne
Case 17: Allen Family

These are just some of the cases of discrimination that I have dealt with or become aware of. There are obviously others where the applicant doesn’t pursue the matter any further.

Had I applied for residency in Australia in early 2012, I would have been denied this right.

A heart attack, a quadruple bypass, cancer, a gastroectomy (stomach removal) and sessions of chemo and radiotherapy would have meant that I would have been considered a “burden to the taxpayer” at a level above $40,000 of expenditure.

There is no doubt that we continue to discriminate against people with health conditions and disabilities. We also breach the U.N. Convention, which we flag at every opportunity. We have a Migration Act that has the provisions of the Disability Discrimination Act specifically excluded from application.

So, whilst lauding the parties in their commitment to a non-ethnicity based discriminatory immigration policy, it is clear that we have much to do in making our migration policies disability and health condition friendly.

Suresh Rajan is a former president of the Ethnic Communities Council of Western Australia. He is a regular contributor on the subject of multiculturalism to media in Perth and has been for many years.

This is great news from Canada. Now Australia needs to follow suit and end #discrimination in our migration system. https://t.co/rWfckfplmR @DownSyndromeAu @DANALtd1
— Ross Joyce (@AFDO_CEO) April 19, 2018