HIV Australia | Vol. 8 No. 1 | April 2010

By Michael Williams

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The contemporary political and media obsession with asylum seekers who travel to Australia by boat has long overshadowed the many other iniquities which plague the nation’s migration system. One such example is the treatment of refugees and potential migrants who have a chronic health condition or disability.

Under current Australian migration policy, applicants for residency must satisfy the ‘health requirement’ – a requirement that is iniquitous in several respects. This is particularly so for people living with HIV, who are generally refused permanent residence.¹

Migration lawyers and those within the HIV sector have regularly made proposals for reform of the present health requirement regime, and hopes for change have been heightened by the interest generated by the current joint Parliamentary Inquiry into the Migration Treatment of Disability. A large number of submissions have been made to the Inquiry, and nation-wide public hearings are ongoing.

This article will discuss the impetus for the inquiry and, by reference to some of the submissions tendered, will detail the current application of the law to prospective migrants living with HIV. It is argued that the current system of regulations and policies is discriminatory and in desperate need of overhaul.

Inquiry into the Migration Treatment of Disability

The Parliamentary Inquiry into the Migration Treatment of Disability was prompted by the case of German medical doctor, Bernard Moeller. Dr Moeller was originally granted a 457 temporary visa for skilled migrants, and he and his family travelled to Australia for Dr Moeller to take up work. The Moellers settled into the local community where Dr Moeller took up work, and they decided to apply for permanent residence. ²

The Moellers’ applications for permanent visas were rejected – because Dr Moeller’s son, who has mild down syndrome, failed the health requirement. If one member of an applicant’s family fails the test, all fail, and the Department of Immigration and Citizenship (the Department) refused the whole family’s permanent visa applications. Despite Dr Moeller’s skills and work capacity, it was determined that allowing the Moellers to stay would ‘likely result in significant costs to the Australian community in health care and community services. What followed was intense media scrutiny of the Department’s decision and considerable public disquiet in the Horsham (Victoria) area, where Dr Moeller was one of only a few physicians servicing a region starved of doctors. ³

While the Minister for Immigration and Citizenship, Chris Evans, exercised his statutory discretion to allow the family to remain, ⁴ the ensuing coverage of the case served to expose something gravely wrong at the heart of the regime for assessing applicants with an illness or disability. The Moeller case highlighted the fact that the current system which fails to recognise the potential contribution that an applicant such as Mr Moeller will obviously make to the community. ⁵ Reacting to the controversy over the Moellers, Minister Evans requested on 26 November 2008 that the Joint Standing Committee investigate the operation of the current law. ⁶

In the case of applicants with HIV, further iniquities stem from policies for assessing potential health and other costs relating to the condition which are arcane and inappropriately applied. This focus on cost ‘burden’ is devoid of any recognition that prospective migrants often contribute substantially more to the Australian community, socially and financially, than they ‘cost’.

The health requirement in the migration regulations

Every person seeking entry to Australia, either permanently or for an extended temporary stay must meet the health requirement specified in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) (Regulations). ⁷ The Regulations stipulate that all visa applicants must be free of tuberculosis, or a disease or condition which would endanger public health. ⁸ Migrants must also be free of health conditions which, due to their potential use of public services, would represent a ‘significant cost’ to Australia (irrespective of whether the health care or services would actually be used). ⁹

The assessment of whether the applicant meets the health requirement is made by a Medical Officer of the Commonwealth (MOC) ‘by reference to a hypothetical person who suffers from that form or level of the condition’. ¹⁰ According to the Regulations, the MOC must evaluate whether the applicant will require medical care or be eligible to access a community service.^11,12 For most visa subclasses, it is immaterial to the question of accessing medical and community services whether the applicant is a person of means, or belongs to a family who offers to pay for such services. ¹³ Consequently, unless applicants with HIV are seeking a visa which permits a waiver of the health requirement (such as a business or educational visa, or a visa granted on humanitarian grounds), most will fail and thus be denied entry. The basis for this is that the costs of care and treatment, including the cost of antiretroviral medication, would be significant and therefore be likely to prevent an Australian resident from accessing that healthcare or treatment.¹⁴ The Department’s derivation of the particular figure regarding healthcare costs for HIV-positive people in Australia has always been a matter of uncertainty, but it is commonly accepted that the figure relied upon by officials is approximately $250,000 throughout an individual’s lifetime. ¹⁵

A number of submissions to the inquiry argued forcefully that the operation of the present system particularly disadvantages visa applicants living with HIV. As the HIV/AIDS Legal Centre (HALC) pointed out, the current regime ‘is blind to some identifiable potential significant health costs, and sensitive to others’, ¹⁶ in that readily detectable diseases such as HIV or down syndrome are singled out, while applicants with obesity or an addiction to smoking (representing potentially immense future public cost burdens) are more likely to go unnoticed. ¹⁷ Submissions also pointed out that the current law encourages decision-makers to ‘apply a generic notion’ of a condition without proper consideration of an applicant’s actual state of health, ¹⁸ and that the system currently screens out applicants with HIV (or any condition) requiring potential future treatment on the basis of an expense that may be never arise for that particular applicant. ¹⁹

The submission by Professors McCallum and Crock noted that figures relied upon by the Department to measure the future public ‘cost’ of migrants with a health condition have historically been based more on ideology (and I would add prejudice regarding particular conditions) than on rigorous empiricism. ²⁰ This and other submissions further argued that the health requirement is inconsistent with Australia’s obligations under international treaties to remove discrimination against, and promote a positive vision of, individuals with disabilities and other health conditions. ²¹ The health requirement constructs a harmful view of HIV-positive people, namely that they are a drain on public resources and incapable of making a contribution to Australian society. ²²

Prospects for reform

The most obvious reform would be to unequivocally state that the Disability Discrimination Act 1992 (DDA), which makes it illegal to discriminate against individuals on the basis of a health condition, should apply to decisions relating to migration (migration law is currently exempt from the DDA). ²³ Further, applicants should not be assessed against a hypothetical person with the same condition because this leads to arbitrary generalisations about the condition and its economic impact. ²⁴ Decision-makers should undertake a more personalised assessment, examining the particular health status and prognosis of the applicant in question. ²⁵ Reliance on empirical studies relating to the actual costs of treating a condition is also an imperative reform.

Significantly, the government recently announced the tightening of the eligibility criteria for skilled migrants, ²⁶ suggesting that the ‘ideal’ migrant in these difficult economic times is one whose sole purpose is to improve the economy. Given this statement, and the fact that in election years public debates on immigration are rarely well-informed, I can only be cautiously optimistic that the Inquiry into the Migration Treatment of Disability will promote a more sophisticated view of the economic contribution made by migrants, and that far-reaching reforms to migration policies affecting people with disability or chronic disease will be introduced.

References

1 McCallum, R. and Crock, M. (2009). Submission to the Joint Standing Committee on Migration: Inquiry into the Migration Treatment of Disability, p4.

2 Dunn, M. and Edwards, M. (2008). Doctor Told to Get Out because of Son with Down Syndrome, Herald Sun, 31 October.

3 Ibid.

4 Lunn, S. (2008). Minister Lets Down Syndrome Family Stay, The Australian, 27 November.

5 See Immigration Advice and Rights Centre, (2009). Submission to the Joint Standing Committee: Inquiry into Migration Treatment of Disability, p4.

6 Senator Chris Evans, ‘Parliamentary Committee to Investigate Migration and Disability’.

7 Section 65 of the Act: Australian Immigration Law, (2009). 20,700.

8 See schedule 4, clauses 4005, 4006A and 4007 of the Regulations: Australian Immigration Law, (2009). 20,700.

9 Australian Immigration Law, (2009). 20,700.

10 Ibid, 20,700.

11 Ibid, 20,710.

12 Schedule 4, clauses 4005, 4006A and 4007: Australian Immigration Law, (2009). 20,700.

13 Australian Immigration Law, (2008). 20,720.

14 Schedule 4, clauses 4005, 4006A and 4007: Australian Immigration Law, (2009). 20,700.

15 Papadopoulos, P. (2006). Migration Law and HIV/AIDS: A Door Closes but a Window Opens, HIV Australia Vol. 5, No. 2.

16 HIV/AIDS Legal Centre. (2009). Submission on Reform of Australia’s Migration Regulations regarding the Health Criteria and Health Waiver, specifically Addressing the Impact upon People Living with HIV/AIDS, p11.

17 Ibid, 10–11.

18 Freehills, Submissions to Joint Standing Committee on Migration: Treatment of People with a Disability, p1.

19 See, for example, the discussion in ibid, p2.

20 McCallum and Crock, Submission to the Joint Standing Committee on Migration, p3.

21 In particular, the United Nations Convention on the Rights of Persons with Disabilities: ibid, p16.

22 This was echoed in the submission by the Ethnic Disability Advocacy Centre which stated that “[t]he current health requirement only treats individuals with disability as a cost to the country”: Ethnic Disability Advocacy Centre, Migration Review Treatment of Disability: Submission to the Joint Standing Committee on Migration, p8.

23 Australian Immigration Law, (2009). 20,720.

24 See the discussion in McCallum and Crock, Submission to the Joint Standing Committee on Migration, p10.

25 Immigration Advice and Rights Centre, Submission to the Joint Standing Committee, p7.

26 Narushima, Y. (2010). Skilled Migrant Shake Up, The Age, 6 February.

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Michael Williams is a lawyer and Board Member of the Victorian AIDS Council/Gay Men’s Health Centre (VAC/GMHC). Prior to joining the Board, he coordinated the HIV/AIDS Legal Centre, a project of the Victorian AIDS Council. All views expressed above are his own.

 

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