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The ºÚÁÏÇ鱨վ (Commission) has provided a submission for the Department of Home Affairs’ review of Australia’s visa Significant Cost Threshold under the Migration Health Requirements. 

Human rights framework 

Australia has ratified numerous international human rights instruments. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) sets out the clear rights and obligations relating to people with disability. These obligations in addition to all other human rights obligations ratified by Australia extend to migrants and prospective migrants with disability. 

Under international human rights law, Australia maintains the sovereign right to exercise control over the entry of non-nationals into its territory. However, exercising this sovereign right must comply with Australia’s human rights obligations. Australia may reasonably seek to impose restrictions, including quarantine requirements if a communicable disease imposes a risk of harm to others. The Commission identifies significant concern over current migration laws, in particular the Significant Cost Threshold which maintains an outdated view of disability as a deficit. The operation of the Significant Cost Threshold is in contravention of Article 18 and Article 3 of the CRPD. 

The Significant Cost Threshold and the human rights model of disability

The Significant Cost Threshold is a policy under the Migration Health Requirement (Public Interest Criteria 4005 and 4007) of the Migration Regulations 1994 (Cth), which attach to particular types of visas. The Threshold stipulates the visa applicant must be ‘free from a disease or condition’, which is likely to result in a need for health care or community services. This understanding is inclusive of disability. 

The Commission has expressed concern over decisions defining, calculating and applying the Significant Cost Threshold which are based in operational policy and disproportionately effects people with disabilities, making the Threshold a discriminatory policy. Instead, the Commission argues the operation of the Threshold should be based on legal and objective criteria, which should reflect individual needs and circumstances. 

Concerningly, the Significant Cost Threshold does not adhere to Australia’s obligations under the CRPD. The CRPD endorses a human rights model of disability, recognising the value people with disability bring to society. The Significant Cost Threshold does not recognise this. The Commission recommends changes that will align with the CRPD by re-examining costings and assessments in the Significant Cost Threshold.

Recommendations

The Commission’s submission makes 24 recommendations in respect to the current migration laws. These recommendations call for stronger alignment with key human rights instruments – particularly the CRPD – and reforms to the Disability Discrimination Act 1992 (Cth). Key recommendations also call for substantial changes to the operation of the Significant Cost Threshold. These changes include greater transparency in calculating the ‘average cost’ and publishing the scope of ‘health care of community services’ used in determining the Significant Cost Threshold.