The last few months have shed light on several high-profile cases of migrant families facing deportation from Australia. The reason is a single requirement in our current visa applications that directly discriminates against those suffering from a disability or a debilitating illness. These cases have brought Australian migration laws to the forefront of news and resulted in politicians calling for urgent reform. The current immigration health requirement is set out in the Migration Regulations 1994 (the Regulations) under Schedule 4’s Public Interest Criteria. The government was recorded as saying the requirement has three main objectives:

  1. to protect Australians from ‘public health and safety risks’, such as infectious diseases, particularly tuberculosis;
  2. to safeguard access for Australians to medical services that are in short supply, such as organ transplants;
  3. and to limit the amount of money the government has to spend on health and community services.

The Public Interest Criteria is supported by current guidelines, which state, ‘it is important for Australia and the continuation of visa programs that public health risks and health costs are not unduly increased by travellers and migrants.’ The cost requirement is the condition that has caused significant trauma and grief for migrants applying for a permanent or short-term visa in Australia. Many have claimed it unfairly victimises those with a permanent disability and is contrary to the purpose for which the Regulations were initially drafted. A family of five from the Maldives who have lived in Australia for the past six years fear their three-year-old son, Kayban, wouldn’t survive if they are deported. Kayban Jamshaad was diagnosed with severe haemophilia at birth and acquired a brain injury caused during delivery, which resulted in an intracranial haemorrhage. His parents, Shizleen and Ahmed, were advised by doctors to turn off Kayban’s life support before he was even a week old.

Miraculously, Kayban survived on his own without life support and continues to live with the family of five in Western Australia where Shizleen works as a social worker. The family planned to return to the Maldives, but Kayban’s ongoing health requirements means they have been forced to reside in Australia where he can receive the best possible care. Kayban requires round-the-clock care and a range of specialised treatments that includes routine prophylaxis (preventative healthcare) and seizure medications twice daily. Shizleen and Ahmed pay for all of Kayban’s treatments themselves or through their private health fund. Shizleen was sponsored by her employer to apply for a Temporary Skill Shortage visa (subclass 482) to stay in Australia, with her husband and three children listed as dependants.On 10 December last year she received a letter from the Department of Home Affairs informing her that all family members had been approved for the visa, apart from Kayban.

A rejected applicant has only two options: to go through a rigorous appeal process or to accept the decision. Returning to the Maldives would mean certain death for Kayban in a country with resources insufficient to support his complex disability. Kayban’s rejection letter also stated that his case did not warrant a waiver on compassionate grounds. Dr Jan Gothard, migration agent and disability specialist, told SBS News that, ‘The regulations say that a visa applicant’s health care costs must not exceed a certain threshold, which is currently $49,000.00 over the period of a temporary visa.’ Critics
argue that The Regulations unfairly discriminates against visa applicants with a disability. Dr Gothard said, ‘The costs for an able child’s education who is applying for a visa are not considered to be a cost to the Australian community. But if a child goes to school and needs special education, that is considered to be a community cost. It is clearly discriminatory.’ The Regulations were recently altered, though notably the modifications were kept quiet and not publicised. From 1 July, visa applicants with permanent medical conditions or disabilities will no longer be assessed in terms of their lifetime care cost, and the cap has been increased from $40,000.00 to $49,000.00.

Ironically, Kayban would not be able to access the services his application has been costed for as a temporary visa applicant. The exercise of the waiver is based on whether the costs can actually accrue. As he is not applying to become a permanent citizen, the costs attributed to Kayban could not accrue. Therefore, his rejection is based on an unjust miscalculation. Kayban’s appeal is being heard at the Administrative Appeals Tribunal in Perth on 29 August. If his Appeal is rejected, the last resort is to request the Minister for Immigration, David Coleman, directly intervene. It is at the Minister’s behest whether he intervenes or not and there is no direct requirement. Many families are not so lucky and slip through the cracks without attracting any media attention. Kayban’s case is one of hundreds, the majority of which are rejected before even reaching the Appeal stage. For Australia, a country that prides its international image on being multicultural, this is a failing of our legal system and a testimony to the significant work that remains to be done.

By Rianna Shoemaker

Rianna Shoemaker is in her 4th year of dual Bachelors of Fine Arts (Creative and Professional Writing) and Laws at QUT. Her piece “Last One Standing” was shortlisted for QUT’s Youth and Children’s Writing Literary Prize, a scholarly essay on the resurgence of women in fiction. You can find her work in Torts Illustrated, here at Brietley London and on the Victoria Parks’ website. Follow Rianna Shoemaker on LinkedIn.

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