Children with disabilities refused visa to Australia

[Guest The Pom Queen]

Under the Act, children with Down syndrome and other disabilities are automatically refused permanent residency because they are judged a financial burden to taxpayers.

“Our migration laws are still based on discriminatory and prejudicial thinking that assumes people with Down syndrome will be a drain on the nation’s resources,” Down Syndrome Australia CEO Catherine McAlpine says.

In 2008, German-born Dr Moeller was denied permanent residency because his 13-year-old son Lukas had Down syndrome. It was a case that generated so much outrage that it sparked a parliamentary inquiry into Australia’s treatment of disabled migrants.

Around the same time, a British-born midwife working at a Perth hospital was waging a legal battle with authorities who had ordered she be deported because she had a child with Down syndrome.

Dr Moeller had brought his family to country Victoria after taking a job at a local hospital in response to the Australian Government’s plea to foreign doctors to ease the chronic shortage of medical professionals in rural areas.

 

 

But after two years on a temporary visa, the Department of Immigration rejected his application for permanent residency because Lukas’s Down syndrome was deemed to be a burden on taxpayers.

It was able to do this because the Migration Act 1958 bars applicants with health conditions, including disabilities, which may lead to use of state medical services.

Conveniently, the Migration Act 1958 is exempt from the Disability Discrimination Act 1992 (DDA).

“It’s the worst thing that happened to me, worse even than when they told me Lukas had Down syndrome,” Lukas’s mother Isabella told Britain’s The Telegraph at the time.

“We fought for years against discrimination in Germany against Lukas.”

The decision was upheld on appeal by the Migration Review Tribunal.

Outraged, the community in Dr Moeller’s adopted town of Horsham started a petition that led to a massive media campaign drawing attention to Australia’s “archaic” and “discriminatory” policy on disabled migrants.

It led to the then Immigration Minister, Chris Evans, overturning the decision and calling for a review of the law that automatically rejected Lukas because of his Down syndrome.

 

 

The Moeller family were allowed to stay after the then Immigration Minister Chris Evans overturned a deportation ruling following a massive campaign that drew attention to our discriminatory laws and embarrassed Australia.

Mr Evans also overturned the deportation order for the Perth midwife, ending a five year legal nightmare for the mother.

And so the parliamentary inquiry into Australia’s treatment of disabled migrants began.

In 2012, the federal government published its response to the Joint Standing Committee on Migration Inquiry into the Migration Treatment of Disability. It had rejected most of the committee’s recommendations, including a crucial one calling for the removal of the Migration Act’s exemption from the DDA. Which means that families with children who have Down syndrome can still be barred from starting a life in Australia. It raised the lifetime cost threshold for individuals with a disability from $21,000 to $40,000, a figure designed to look good on paper but meaningless in practice.

“No one with Down syndrome could ever meet that criteria, it’s impossible,” says migration consultant George Lombard, a former Australian government and United Nations lawyer.

“The costs associated with Down syndrome run far, far higher. A million dollars over a lifetime. These laws are used to turn down (migrants) with Down syndrome all the time. And not just Down syndrome, other disabilities too. It happens every day.

“The only other way, really, is through a waiver, a ministerial discretion.”

Mr Lombard says the inquiry failed to change the law and Ms McAlpine agrees.

“Despite the community outrage in 2008 at the treatment of Dr Moeller and his family, who were initially denied permanent residency because his son had Down syndrome, nothing much has changed,” she says.

“The current community outrage over the heartbreaking story of baby Gammy reflects the community’s inclusive position back in 2008.

“However, our migration laws are still based on discriminatory and prejudicial thinking that assumes people with Down syndrome will be a drain on the nation’s resources. There is absolutely no recognition of the significant and valuable contribution people with Down syndrome and their families make to the life of their community and the nation as a whole.”

 

 

Ms McAlpine, who has a 13-year-old son, Julian, with Down syndrome, said our laws breached the UN Convention on the Rights of Persons with Disabilities, which has been ratified by Australia.

Article 18 of the Convention says: “State parties shall recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities ... have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability.”

The government denies our immigration laws are framed to exclude people with Down syndrome and other disabilities.

“There is no law barring people with Down’s syndrome from getting an Australian visa,” a Minister for Immigration and Border Protection spokesman told news.com.au.

“Active tuberculosis is the only condition that of itself precludes the grant of a visa, given it is a public health risk. The health requirement is not condition-specific. It is an objective test to determine whether the ongoing care of an individual would result in undue costs on the Australian community or prejudice the access of Australian citizens and permanent residents to health care in short supply.

“There are health waiver provisions that exist for certain subclasses of visa whereby someone deemed to have failed the health requirement can have waiver provisions applied. The number of visas eligible for health waiver provisions has been expanded in recent years following the Moeller case.

“In addition, the significant costs threshold used in the health requirement assessment has been raised, meaning fewer people would fail the health requirement.

“Following the Joint Standing Committee on Migration report, there is an annual review of the significant cost threshold — it is currently set at $40,000 over the lifetime of the individual.”

[Guest The Pom Queen]

I know Chris Evans overturned the refusal for Dr Moellers but would baby Gammy be permitted to stay? Why haven't these laws been changed.

[Guest]

I know Chris Evans overturned the refusal for Dr Moellers but would baby Gammy be permitted to stay? Why haven't these laws been changed.

 

 

I don't know how the law will stand on his case. Baby Gammy has an Australian parent or parents so would not need a visa would he? Would it not be citizenship by descent? No clue the ins and outs of surrogate births overseas to Aus nationals.

[Pumpkin]

Agree, Gammy would come over as a citizen or not at all if the surrogacy laws don't permit it. But I am sure it would not be a child visa anyway.

[Guest]

Laws dating from the 50's really should be revised in this day and age.

[CollegeGirl]

Last I had read the significant cost threshold was $35k over 5 years. Is it really $40k now?

[CollegeGirl]

Also, so glad we used George Lombard for our PMV.

[Paul1Perth]

Laws dating from the 50's really should be revised in this day and age.

 

Why? do you assume that they are all wrong because they date back so far? I can see the point in not granting a visa to an applicant if they had downs syndrome kids. Depends on the severity of the downs syndrome but it's a good bet they would be a "drain in the nations resources". I don't know why Catherine McAlpine would think differently, even though she is CEO of Down Syndrome Australia.

 

For the doctor and nurse who were already in here and been accepted and then refused a permanent visa then that was totally wrong. They had been good enough to be accepted to fill a gap and should have been allowed to stay.

 

As for the baby Gammy case who knows where the kid is going to be better off? Wouldn't trust a convicted paedophile to look after any kids, they will be lucky to keep the one they have.

[Rachel Tilley]

Nice to read that Chris Evans did get a couple of cases right when he intervened!

[Que Sera Sera]

I tend to agree that Australia has the right to refuse an application where there will be a significant cost to the country for whatever reason be it age disability etc. It may be harsh but there has to be policies to protect the Tax payer.

[Harpodom]

All part of Fortress Australia.

 

Makes you proud, dunnit?

[Harpodom]

Ms McAlpine, who has a 13-year-old son, Julian, with Down syndrome, said our laws breached the UN Convention on the Rights of Persons with Disabilities, which has been ratified by Australia.

Article 18 of the Convention says: “State parties shall recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities ... have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability.”

 

 

Good luck with that. Australians and their govt typically resent being told what to do by the UN, as we've seen with refugees