• Brandon Ah Tong
• Australian Policy Online

Simran Kaur

27 October 2011Immigration is a uniquely prejudicial site of public policy, in which the goal of exclusion is exercised and institutionalised writes Brandon Ah Tong from Vision Australia.

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After more than two years of uncertainty, Simran Kaur, a legally blind social worker from New Delhi India, has recently been granted permanent residency following an intervention by the Minister for Immigration and Citizenship. Ms Kaur's original application in 2009 under the General Skilled Migration Scheme (GSM) was rejected on the basis that she did not meet the health criteria solely due to her legal blindness. Under the hypothetical person test of the Migration Regulations 1994 (the Regulations), a legally blind person would in time be eligible to receive a Disability Support Pension, and therefore pose an undue burden on public expenditure. The Decision by Minister Bowen to intervene in Ms Kaur's case is a welcome move and the Minister ought to be congratulated, however despite the fight being won, the battle for equity and fairness in immigration and disability, remains an uphill one. Should someone like Ms Kaur seek to apply under the same GSM visa class tomorrow, and indeed the majority of residency visas, she too would be denied.

Going beyond the extremes of public sentiment that remains fixated on matters which are likely to require the continuation of special discretionary powers, such as cases concerning persons without cognitive neurological function, Simran Kaur’s example demonstrates the need to move disability and immigration out of the 19th and into the 21st century. A federal parliamentary inquiry conducted by the Joint Standing Committee on Migration (JSCM) led by Michael Danby MP, tabled a report in June 2010 called, ‘Enabling Australia’. This report inquiring into the treatment of migration and disability, outlined 18 recommendations that as a whole, would positively reform Australia’s immigration system and significantly shift policy away from the medical model of disability that currently prevails. Unfortunately, fifteen months on and counting, the Gillard Government, is yet to respond to this report.

What’s the problem?

Immigration in itself, is a uniquely prejudicial site of public policy, in which the goal of exclusion is exercised and institutionalised within law and bureaucracy, as the essence of its nature. Unchallenged in its breadth and power, perhaps with the exception of social welfare or insurance, the principle objective of migration policy, is to act as a filter for the movement of persons across sovereign borders against the supreme interest of the state. Migration policy in Australia, going back to its first incarnation in the Migration Restriction Act 1901 as the first Act of Federation, has always been about making judgements upon the fitness and desirableness of would-be-Aussies.

What makes disability unique within Australia’s current immigration system and continuing the tradition of overt discrimination from those malign beginnings, is that administrative processes are still judged on beliefs about character, identity, capability and capacity, which are not grounded in reality, but on uninformed prejudice. Unlike the policies of the ‘White Australia’ era, which were very much in step with the zeitgeist, it is not the current spirit to consider people with disability as unfit and unworthy as a general rule rather than the exception.

Section 60 of the Migration Act 1958 gives effect to the Minister to require an applicant to be examined by a designated qualified person to assess their health, physical and mental condition, and provides for the Minister’s delegate to grant or refuse entry based on this assessment. A Medical Officer of the Commonwealth (MOC) is empowered to undertake assessments against the Public Interest Criteria (PIC) 4005 of the Migration Regulations. Parts (a) and (b) of PIC 4005, state that an applicant must be ‘free from tuberculosis and free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community’. These preliminaries appear fair and reasonable , however their further qualification extends well beyond the bounds of fairness and reason.

Part c(ii) states that applicants must not be a person who has a disease or condition that would require health care or community services, and to which the following would apply:

• ...Result in a significant cost to the Australian community in the areas of health care and community services; or
• Prejudice the access of an Australian citizen or permanent resident to health care or community services;
• Regardless of whether the health care or community services will actually be used in connection with the applicant....

The health criteria is subject to the one fail all fail rule, which means should one member of an application be rejected on health grounds, all applicants are denied a visa. Assessments against the health criteria also apply to all dependants of the applicant, whether or not the dependant is part of the application. In a limited number of visa sub-classes, a health waiver has been introduced to allow a decision maker from the Department of Immigration and Citizenship (DIAC) to consider other mitigating factors in determining whether the granting of a visa would be in the public interest. However, the vast majority of skilled, humanitarian and family visas do not contain a waiver and are therefore not subject to review by DIAC or the Migration Review Tribunal (MRT). The only recourse is to apply to the Minister to use discretionary powers under section 351 of the Migration Act.

There are two primary factors that make this system unduly discriminatory.

The first is the hypothetical test given effect by the statement in PIC 4005, Regardless of whether the health care or community services will actually be used in connection with the applicant. In the area of blindness, this means that a person with a particular condition, may ‘hypothetically’ access a range of professional medical services to treat their condition, access a range of community services, or both. It is the case that for most permanent eye conditions or eye related neurological conditions, that there is no medical remedy or ongoing treatment.

On the point of community services, Vision Australia, as the largest provider of blindness and low vision services, has a broad range of services to which this might apply. These include: orientation and mobility; occupational therapy; orthoptics; early childhood development; information and library services; high and low tech equipment solutions; braille and adaptive technology training; recreation and sport; and peer and emotional support. Hypothetically, without consideration of their actual circumstances, a person presenting with legal blindness could quite possibly require access to any or all these services. What we do know, is that a typical service profile is of a person who accesses services episodically, that is, they come in and out of service depending on their need. Which services would depend on a range of factors that can’t be predicted or attributed without knowing the background or particular need of the actual person.

People like Ms Kaur who was born with limited vision, and those either born blind or who have lost vision later in life and have lived with vision loss for any amount of time, develop compensatory skills to go about daily tasks like working, studying, shopping, looking after children or just moving about the community. Some of these skills require practice with expert training, some are just a matter of experience, and others require aids such as a white cane, a talking computer or a magnifier. Some people are more proficient in using alternate literacy methods such as braille than others, some do not read braille at all and prefer to use adaptive technology. Some use a white cane or a Seeing Eye Dog, and some are able to use their residual vision to move about. What is clear, is that there does not exist, a profile of a typical blind person.

In Ms Kaur’s case, and what is typically assumed in the immigration system, is that at some point, such a person would claim a Disability Support Pension. Built into the guidelines, is a significant cost threshold figure of $21,000 over a three year period, of which should someone in fact claim a pension, their pension would place them over the significant cost threshold. Notwithstanding the fact that under section 7 of the Social Security Act 1991, migrants are not eligible to access the Disability Support Pension for ten years from the granting of their visa, this arbitrary figure, does not factor in the contribution a person may make to the Australian community. it is this cost only ledger which attracts the second key element of why this system is discriminatory.

Again, the ten year waiting period aside, what an individual may contribute to the community in purely economic terms, is not able to be put to DIAC or the MRT, to offset this perceived significant cost. DIAC and the MRT are only empowered to consider arguments that may directly refute or challenge the assessment of the MOC in relation to the health assessment. For Ms Kaur, The financial income generated by her likelihood for employment and subsequent economic injection back into the community and that of her husband, could not be included as a factor in DIAC’s decision. In addition, as a masters level qualified social worker from Delhi University accredited to Australian standards, and experience working with refugee groups, vulnerable women, children and elderly people with disability, Ms Kaur’s skills and experience as a social services professional, directly impacting on the social and economic wellbeing of her charges, were also silent factors in the decision processes. This is of course, despite their validity being tested in the other dimensions of her GSM visa application and found to be of the required standard.

The mythical hypothetical blind person and the inability to offset against an arbitrary significant cost threshold, means that the current system does not follow legitimate, objective and reasonable criteria. Moving on from the medical model of disability of old that only views people with disability as objects of their impairment, the social model prevalent in public policy in the 21st century, looks to the interaction between people with a range of physical, sensory and psychological impairments and the barriers created by social, attitudinal and environmental factors. This is to say that disability does not reside within the person, but can only be understood by looking at impairment as it relates to external factors of the status quo and the norm. It is not possible to judge a person’s worthiness or fitness solely based on impairment, and it is not possible to be legitimate, reasonable and objective, without considering an actual person. For the immigration system to be totally and deliberately blind to this reality by any definition, is plainly discriminatory.

How can the system be fixed?

The JSCM report, ‘Enabling Australia’, conducted a robust inquiry into the current immigration system, its processes and procedures, the consistency with contemporary understandings of disability, and investigated the potential for reform. In tabling the Report in Federal Parliament on the 21st of June 2010, the JSCM Chair, Michael Danby, said that:

'The committee found that our present migration regulations explicitly assume disability or conditions associated with a disability will be a cost burden to the wider community. This is based on projected or theoretical costs of health care and community services and payments, such as the disability support pension, irrespective of whether these services would ever be used. In the vast majority of cases, no account is taken of the capacity of the applicant or applicant’s family unit to defray costs by care or economic contribution. Neither is there consideration of the economic or social contributions of a migrant or their family. This is an approach that the committee considers needs urgent rectification….'

The JSCM, constituted by all sides of politics and supported unanimously, made 18 key recommendations. These recommendations include measures to Adjust the administration and decision making in the current system, such as to raise the significant cost threshold to a more appropriate level, amending the Regulations to include social and economic contributions, to consider diseases and health conditions separately from conditions related to disability, and for DIAC and the MRT to be empowered to consider mitigating factors. They suggest removing the criterion that costs are considered regardless of whether health care or community services are actually used. They also suggest enhancements to the system, such as applicants to be provided with a breakdown of their assessed costs and to expand the waiver option to areas of skills shortages, and a number of reviews, such as to re-consider the one-fail all-fail rule and the stipulation that the MOC’s decision be finally binding.

If these recommendations were to be adopted by the Gillard Government as a single suite of reforms, Australia’s immigration system in the treatment of disability, would be significantly enhanced. It would finally turn away from thinking that saw people with disability locked away in institutions. The concerns of the hypothetical person, the arbitrary cost threshold and the cost only ledger, would be rectified and fairness would take its rightful place within the system. It would not open the flood gates as the existing framework of skilled, humanitarian and family streams would still be in place and administered against the national interest. The difference would be that people who are blind and people with disability more generally, who are currently automatically flushed out of the system in the majority of cases, would have the right and the ability to put their case forward and to be judged according to their merits in a manner equal to others.

Conclusion

Simran Kaur, a skilled social worker with much to offer the Australian community, had a great day recently with thanks to Minister Bowen and his foresight and courage to look past the outmoded thinking bound up in the current immigration system. The system is still broken and we need that same foresight and courage to ensure that disability finally finds its way out of the dark. The framework is there in Enabling Australia, what’s needed, is for the Gillard Government to take the opportunity and do what is right, what is just, what is fair for Australia, and lift the blinders on disability off our immigration system.

Brandon Ah Tong is a Policy and Public Affairs Advisor at Vision Australia and was the principle advocate to Simran Kaur.

Image: Simran Kaur