Disability & Immigration Law in Australia

Immigration to Australia is governed by the Migration Act, which is explicitly exempted from the Disability Discrimination Act. While disability discrimination is against the law in Australia, the Department of Immigration and Multicultural Affairs (DIMA) is exempted from this law when dealing with potential migrants and refugees with disability.

Health Requirements

Most visa applicants must satisfy what is known as the standard health requirement. Depending on the type of visa application, a visa applicant must satisfy the health requirement as it is set out in three different forms under the Regulations to the Migration Regulations Act.

Item 4005, the standard health requirement, requires applicants to be free from tuberculosis and other conditions that may cause the applicant to pose a threat to public health or the community. Applicants must not have a condition that is likely to require health care or community services or that would meet the medical criteria for the provision of a community service during their anticipated stay. In addition, applicants must not have a condition where the provision of health care or community services would result in significant cost or would prejudice the ability of Australians or permanent residents to access health care or community services.

Because the Australian government provides significant social welfare benefits, costs are taken into consideration. The DIMA Procedures Manual dictates that if an applicant is likely to consume public health resources at a rate 50 per cent above average over a five-year period, then a Medical Officer of the Commonwealth will likely recommend against the applicant. Cost estimates are not always accurate and can be a ground of appeal.

When assessing the possible impact on community resources, the MOC does not have to prove that the applicant is likely to use the resources in question, only that he or she meets the medical criteria for the resources. This will not always affect the visa, because financial assets sometimes disqualify someone from receiving the benefits in question.

The applicant must not take up health resources that are in short supply in Australia. An MOC might recommend against an applicant who requires an organ transplant on the grounds that he or she might take the place of someone who is already here.

Ministerial Waivers

In some cases, the Minister may grant a waiver of the health requirements. Where an Australian employer sponsors a visa applicant, the health requirement may be waived if, for example, the sponsoring employer gives a written undertaking that they will meet all costs related to the disease or condition that causes the applicant to fail to meet the health requirement.

In spouse, child or interdependency and some humanitarian visa cases, the health requirement can be waived if the Minister is satisfied that granting the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

Appeals

It is uncommon for a MOC’s opinion to be overturned. The Migration Regulations provide that the Minister must take the opinion of the MOC as correct for the purposes of deciding whether a person meets an applicable health requirement.

However, there are a number of legal avenues available. Generally, these occur when a MOC makes an assessment that falls outside the scope of the regulations. The opinion of the MOC is only to be taken as correct if it is an opinion authorized by the regulations, and validly so authorized. If, for example, a MOC oversteps the bounds of the regulations by claiming an applicant has a disease that cannot be diagnosed with certainty, then the applicant might be able to appeal the decision.

Though both the Migration Review Tribunal and Federal Court have jurisdiction to review migration decisions, courts have been extremely unwilling to challenge a MOC’s opinion, unless there is clear evidence that the opinion was incorrect.

On the question of significant cost, in the case of MIMA v Seligman, the Australian Full Federal Court stated:

"The policy behind the test is clear. It is to limit the entry into Australia for long term residence of persons who are likely to be a financial burden upon the Australian community. Having regard to that purpose, it would be artificial to construe the term "community services" so narrowly as to exclude pension benefits which may become payable to the proposed entrant. The words are broad enough to cover such payments and in context are no doubt intended to do so."
 

 Comparison to Canada

The Australian system’s approach to disability is quite similar to the Canadian system. Both exclude applicants who may cause excessive demand on social or health services. The similarities between the systems are largely due to both Australia and Canada offering universal health care and significant social programs for residents. Immigration controls are in place to ensure that these services are not overburdened. The Australian system differs from the Canadian by not automatically exempting children and spouses.

The Australian system requires costs to be 50% above average over 5 years to be considered excessive, the excessive cost threshold in Canada is much lower and anything above average can be considered excessive if caused by a health condition.

Significant opposition to Australia’s immigration laws has taken place. There have been a number of cases highlighted by the media where the disability exclusion has operated unfairly to separate families or reject otherwise productive immigrant families.