When disability discrimination is legal

Date

Chancellor's Postdoctoral Research Fellow, University of Technology Sydney

View more articles from Alecia Simmonds

Dr Enamul Kabir and Dr Siuly Kabir with their son, Srijon.

Dr Enamul Kabir and Dr Siuly Kabir with their son, Srijon.

If Vincent van Gogh, Ludwig van Beethoven, Helen Keller or Frida Kahlo were alive today and in a moment of wild-eyed madness decided to permanently migrate to Australia, would we accept them?

I suppose you could argue that they’re highly skilled and their social contributions are quite possibly monumental. But judging by the requirements of Australian migration law the odds are against them. Why? Because they all had disabilities: Van Gogh suffered depression, Beethoven was deaf, Keller was blind and Kahlo had polio.

In order to migrate to Australia you have to pass a health test where disability is taken into consideration. Applicants are assessed based on the potential cost to the state of their disability. And the Disability Discrimination Act is suspended, meaning that the state can legally discriminate against people with disabilities. Kinda like they’re doing against Aboriginal people in the Northern Territory Intervention where the Racial Discrimination Act is suspended.

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Now all of this was meant to have changed following a 2010 Senate Inquiry into discrimination against potential migrants with disabilities. The government promised in 2012 to adopt a 'net benefit' approach where, in the words of former immigration minister Christopher Bowen, "an individual's health costs can be offset by the benefit their family will bring to Australian society."

But judging by one recent case the outcome remains the same: people with disabilities are still seen by the state as not sufficiently cost-effective.

Take the example of the Kabir family. Dr Enamul Kabir works as a statistician at Queensland University and Dr Siuly Kabir just completed her PhD in biomedical engineering and is now working as a researcher. They’re pretty much your model citizens: last year Dr Kabir paid around AUD18,000 in taxes and together they are performing the kind of research that even an anti-intellectual Abbott government would applaud.

Yet the Kabirs have a problem. Or, more accurately, they have a son called Srijon.  Srijon has very mild autism. So mild, in fact, that Dr Graham Bench declared that while he may once have had autism, he has now overcome it and can’t be considered developmentally delayed. Srijon’s teachers say that his condition is present but improving. But in July of this year the Kabirs received notice that their application for a skilled resident visa had been declined as their son did not satisfy the health requirements. There was no inquiry into how the Kabirs are contributing to society, only a (fabulously erroneous) presumption that Srijon would be expensive.

Aside from its gob-smacking absurdity, this decision raises some interesting questions about how inclusive a society we really are and, more philosophically, how a human life should be measured.

Until the Gillard government’s response to the Senate Inquiry, disabled people were automatically excluded from consideration because they were seen as imposing too much of a financial burden on government services. A person’s worth was measured according to their revenue-earning capacity. The Gillard Government, on paper at least, partly redressed this in their response. They allowed for social contributions to be weighed against financial costs and for compassionate or compelling reasons to be taken into account.

The problem is that in practice the reforms don’t appear to have brought about much change. Parents of children with disabilities, even mild autism are being discriminated against and refused residency, and in the case of the Kabirs, officials have failed to inquire into how the family may be contributing to society.

Professor Emeritus Ron McCallum AO, Senior Australian for the Year 2011, who has been blind since his birth, says, “If I now applied to migrate to Australia, despite the fact that I am a former Dean of Law of the University of Sydney, I doubt that I would be let in.”

These procedural issues are symptomatic of a deeper malaise with our migration laws: disability is seen as an issue of individual fault and social cost rather than an issue of human difference that needs to be accommodated in a pluralistic society.

The ‘financial burden’ of providing services and support to people with disabilities needs to be seen as simply a necessary part of the architecture of a society that embraces diversity. The problem does not lie with the person in a wheelchair, it resides with the building that doesn’t have wheelchair access. Similarly, migrants with disabilities are not the problem. The problem lies with perceptions of disability services as a costly drain rather than a social good.

In singling out and discriminating against people with disabilities, Australia’s migration laws reflect a view of disability as something pathologically different, rather than simply a state that everyone is born into, will die in and will probably experience through illness at some stage.

Our physical and mental health is, in the span of a lifetime, something quite fleeting and fragile. We will all experience dependency. The myth of the autonomous individual who roams outside webs of care and support is precisely that: a myth. Disability is a fact of life.

Migration policies speak to a global stage. They’re a means of publicising Australian values to the rest of the world. At present we have migration policies that explicitly allow the state to discriminate against people with disabilities. For us to espouse any ideals of social inclusivity and diversity we need to remove the barriers that reject human difference at the door.

The Kabirs are currently contesting their case in the Migration Review Tribunal. Please support their case through emailing or telephoning your local member.

35 comments

  • Setting a a precedent is the problem as well. Imagine if everyone with disabilities in other countries came here to live and we gave many citizenship, imagine the massive cost. There are millions upon millions of disabled children either physically or mentally in India alone and their parents may be skilled enough to get into Australia and eventually apply for citizenship. With the system here especially now with the NDIS we could potentially have thousands of these families coming every year and over 10 years how many? 100 000 or more potentialy disabled people we need to support and growing. This means this would no longer be a natural event because we would become the disabled haven of the western world. I feel for these people but we cannot and must not start setting a precedence. Nothing to do with racism or any other kind of ism, this is purely concern about this countries financial future, afterall without a strong financial basis we could easily become a backwater with high unemployment and crime and mass emigration.

    Commenter
    Dogtags
    Location
    Melbourne
    Date and time
    September 18, 2013, 9:48AM
    • Well, all they would have to do is paint themselves white and threaten to pour petrol over themselves (not their kid) in front of parliament on spring/collin st and voila, they will get a special pardon from the minister himself. What was it the last time - some South African and his family got special treatment when he went out, guns blazing and drums banging, about not being allowed to migrate to Australia because his son had a disability. While I understand the policy decisions of not allowing people with disabilities in Australia because they "tax" the system, I think it should be on a case by case basis because we do after all, want to be a fair and just society as practicably as possible.

      Commenter
      Green Tea
      Location
      Melbourne
      Date and time
      September 18, 2013, 10:00AM
      • Why do you think there are physical and health checks in place for intended migrants to go through before coming to this country? And they are part of the general screening process, indiscriminately used, regardless of where the migrants hail from.

        A similar case came up a while ago, with a German family being denied entry and settlement in Australia because their son had Down syndrome. The accepted the verdict and moved on. This family intends to waste the Australian taxpayer's money fighting the verdict because they can't take "no" for an answer. That, or our newly minted Disability Insurance Scheme is something they desperately want to benefit from.

        The entry rules are the same, and apply equally to everyone. The hard facts are that this family will contribute less to this country than they country will benefit from having them here. Once our own are well looked after (homeless and disabled) we can look at having the entry rules for such cases changed, not before.

        Commenter
        many
        Date and time
        September 18, 2013, 10:23AM
        • This system is cruel. And the idea that this family - an academic and a PhD-qualified biomedical researcher - are not going to contribute greatly to this country would be utterly laughable were it not so offensively ridiculous.

          Commenter
          pb
          Location
          sydney
          Date and time
          September 18, 2013, 2:39PM
        • I agree. The race....discrimination....cards are always useful when old be immigrants do not understand "no"! And you are right, would this family receive the same level of care, not to mention our new NDIS must be extremely appealing.

          As an aside, just as a man seeking sex must accept "NO" from a woman so too does any person coming to our country. Rules are for everyone and NO means just that!

          Commenter
          rrr
          Date and time
          September 18, 2013, 4:04PM
        • I don't get this. I managed to get in as a resident, with my wife who has been dependent on a wheelchair for most of her life. We are both now citizens.

          I have a friend who also moved to Australia despite having a son with Asperger's.

          Is the issue maybe because they are brown people rather than white people like us? And the mild autism is merely an excuse?

          Commenter
          Ghoti
          Date and time
          September 18, 2013, 8:49PM
      • Are doctors here or in the country of origin responsible for assessing teh disability of the person in question ?

        Commenter
        Lady
        Location
        Melbourne
        Date and time
        September 18, 2013, 10:24AM
        • We do live in a pluralistic, caring society. We have enough of our own sick and disabled to look after, and by introducing the IDC recently, that care has been legislated.

          It is up to everyone else, in their own countries, to fight for and introduce the same, for the benefit of their own sick and disabled. The fact that they don't and they turn their back on their own countries and try to emigrate to Australia in order to take advantage of what we have built and fought for here, is proof of their own individual selfishness and greed.

          No sympathy form me, I'm afraid. The rules should be applied equally to everyone.
          If these people do not fix their own countries and look after their own people, who will?

          Commenter
          Great!
          Date and time
          September 18, 2013, 10:31AM
          • Cost / benefit analysis.

            2 Government employees. i.e. a cost to the system.
            1 special needs child. i.e a cost to the system.

            Good decision. We are not a charity. We do not have endless rivers of money.

            Commenter
            cranky
            Location
            pants
            Date and time
            September 18, 2013, 10:46AM
            • "anti-intellectual Abbott" When I read that I thought it was a really cheap shot!! Perhaps these good folk, who on the surface appear worthy of Australian citizenship, should hop onto a boat, pretend to be refugees, and then no problem!!!

              Commenter
              colroe
              Location
              Australia
              Date and time
              September 18, 2013, 11:25AM

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