Disability Discrimination and Immigration in Australia

Abstract

In order for an application for migration to Australia to be successful, potential migrants must meet various criteria, including specific requirements relating to health. These health requirements may create a barrier to migration to Australia for those who suffer from disability or disease. The Disability Discrimination Act 1992 (Cth) makes it unlawful to discriminate against a person based on disability, including disease. Significantly, the Disability Discrimination Act 1992 (Cth) does not apply to the Migration Act 1958 (Cth). Therefore discrimination on the grounds of disability in the administration of the Migration Act 1958 (Cth) is lawful. As a consequence of the Migration Act 1958 (Cth) being exempted from the operation of the Disability Discrimination Act 1992 (Cth), many migration applications have been lawfully refused due to the disability of the applicant or a member of the applicant's family. Recent cases have tested the validity of the opinions of the Commonwealth Medical Officers who are required to provide the necessary medical opinion upon which the migration application is determined. The decisions of the Federal Court in Robinson and Ramlu, which are discussed below, give new hope to future migration applicants. Both cases were decided in favour of the applicant, holding that the medical opinions provided were invalid under the relevant migration regulations because the Commonwealth Medical Officer had assessed the applicant's disability based upon a hypothetical generic person with the disease or condition of the applicant rather than having regard to the particular circumstances of the applicant. These cases send a clear signal to Commonwealth Medical Officers that they must now provide opinions based upon a case by case analysis, having regard to the actual nature and extent of the applicant's condition, rather than an assessment based on the generic person with the disease or condition. This paper examines these decisions in detail against the background of Australian immigration policy and its effects on people with disabilities.