When disability discrimination is legal


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.


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.