IT’S the law you never knew we had.
Or, if you remember the embarrassing case of Dr Bernhard Moeller, it’s the law you thought we’d gotten rid of.
Last week Australians opened their hearts and wallets to the cause of baby Gammy , horrified at the idea that a child could allegedly be rejected because of his imperfections.
Yet Australia’s Migration Act, barely updated since 1958, allows us to do exactly that, whenever the opportunity arises.
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.
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.
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.”