Final Submission to the Disability Discrimination Act 1992 Review: Repeal of the Migration Exemption (Section 52) and the Impact on Families

To: The Disability Discrimination Act 1992 (DDA) Review Secretariat

Date: 27 October 2025

Re: Submission urging the full repeal of the statutory exclusion of disability discrimination in migration policy (Section 52) and highlighting the severe impact on families seeking entry or reunion in Australia.

This submission addresses the critical and persistent conflict between the principles of the Disability Discrimination Act 1992 (DDA) and the discriminatory practices embedded within the Migration Act 1958 and its associated regulations, particularly concerning the Migration Health Requirement. The Australian Government cannot maintain an anti- discrimination approach domestically while simultaneously exempting that law for non- citizens attempting to migrate.

The DDA Review Issues Paper considers proposed amendments to modernise and strengthen the DDA, including reviewing the scope of exemptions and assessing the DDA’s interaction with the broader legislative framework. The permanent exemption (Section 52 of the DDA) that allows migration criteria to override discrimination prohibitions must be repealed.

The Migration Exemption and Codiﬁed Discrimination

The DDA is intended to promote equality and prevent discrimination. However, Section 52 explicitly exempts Divisions 1, 2, and 2A (prohibiting discrimination in work, education, services, etc.) and Division 2A (Disability Standards) from affecting discriminatory provisions in the Migration Act 1958 or rendering unlawful anything permitted by that Act or its instruments. The DDA thereby explicitly affirms that it does “not affect the discriminatory provisions” in the Migration Act 1958.

This exclusion facilitates systematic discrimination against people with disability and their families, prioritising Australia’s “economic protection” by managing public expenditure on health care and community services.

Ableism and the Monetary Calculation of Burdens

This discriminatory system relies heavily on the medical model of disability, viewing disability solely as a deficit located within the individual. This approach reduces potential migrants to dehumanising monetary calculations of burdens.

Discrimination is formalised by the Public Interest Criteria (PIC) 4005-4007, which deny visas if a condition would “result in a significant cost to the Australian community”.
The assessment uses the Significant Cost Threshold (SCT), requiring a Medical Officer of the Commonwealth (MOC) to calculate costs based on a “hypothetical person” who is assumed to utilise “every conceivable support or service” at full costs, regardless of whether the actual person would use them.
The calculation fails to account for mitigating factors, such as the cultural backgrounds of culturally and linguistically diverse (CALD) people with disability who may prefer assistance from family members over formal services.
This reliance on cost burdens reinforces an expectation of dependency.

2. Severe Consequences: Family Separation and Rights Violations

The continued existence of the Section 52 exemption facilitates policies that lead directly to the breakdown of family unity and expose vulnerable individuals to severe risks, contrary to international human rights obligations.

Systematic Family Separation

The migration health requirements often operate under a “one fail, all fail” mechanism for family visa applications, meaning if one family member fails the health criteria, the entire

family application is denied, frequently leading to family separation, especially within the humanitarian context.

The Kayani Family Tragedy: Shahraz Kayani, an Australian citizen and former refugee, had his application under the split family provisions rejected because his daughter, Anum, who had cerebral palsy, failed the health requirements as her estimated care costs exceeded the SCT. Despite reports noting that non-humanitarian families with significantly higher costs had been granted exceptions, suggesting possible “bias or prejudice” against the refugee family, the decision stood. Shahraz died by self- immolation outside Parliament House in 2001 as a direct result of his family’s rejection based on Anum’s disability.
I have also witnessed, in my professional life, disabled children born in Australia on temporary visas placed into foster care, as if they were to leave with their parents at the expiry of their visa, they would die due to lack of access to medical treatment in their parents’ home country. In this case, parents have to make the impossible decision to remain with their child and watch them die, or relinquish them to ensure they live.
Current policies often result in children with a disability being left behind (overseas) while other family members migrate, which contradicts Australia’s international obligations to protect family unity.
Additionally, while humanitarian entrants receive a health waiver, family members of humanitarian entrants usually have to go through family visa streams (such as a spouse or child) must pass the health requirement and are ineligible for a health waiver. This results in disabled family members, who are often refugees themselves, being left overseas.

Risk of Medical Refoulement

1 Alice Tay, Report of an inquiry into a complaint by Mr Mohammed Badraie on behalf of his son Shayan regarding acts or practices of the Commonwealth of Australia (the Department of Immigration, Multicultural and Indigenous Affairs), Human Rights and Equal Opportunity Commission (2002).

The systematic denial of permanent visas based on health status can lead to medical refoulement—the deportation of individuals with chronic medical needs to countries where they cannot access adequate medical care, potentially leading to death.

This risk is pronounced for people diagnosed with a chronic illness, such as HIV, during the migration health screening process.
For example, Luciano, the partner of an Australian man, acquired HIV while on a temporary visa in Australia. He was asked to return to Peru to await his partner visa processing, despite his life-saving medications being unavailable there, meaning his deportation would likely result in his death.2

Economic Loss Resulting from the Exemption

The economic rationalism used to justify the exemption and the SCT contradicts the goal of regulating migration “in the national interest,” as it results in measurable economic losses due to the systematic rejection of contributing families.

Loss of Essential Labour and Skills: The rigid health requirement prevents Australia from gaining desperately needed skilled professionals, simply because a family member requires support. The case of the UK police officers highlights this failure: multiple members of the UK Police force have been provisionally accepted for a Subclass 190 (skilled nominated) visa, but were blocked because of their children’s disability. For Jonathon Wales was denied a visa as his son has autism. This rejection was detrimental to regional staffing needs, as 109 out of 182 police vacancies were unﬁlled in regional Western Australia, leaving regional stations unstaffed and forfeiting a “no-brainer” option to ﬁll critical gaps.3
Underutilisation of Professional Skills: Highly trained individuals already present in Australia are blocked from contributing at their full potential, resulting in lost productivity

2 “Who Gets to Stay in Australia?,” (Episode 3 SBS, 2020). 3 Ashleigh Davis, “Migration Act Prevents UK Cop with Autistic Son from Joining Shrinking WA Police Service,” ABC News, 16 September 2023; Ashleigh Davis, “Migration law’s health rules labelled discriminatory as UK police officer battles to get WA work visa,” ABC News, 10 July 2023; Katy Watson, “‘You’re not welcome here’: Australia’s treatment of disabled migrants,” BBC News, 9 July 2024

and tax revenue. For example, a trained accountant, Qasim, was unable to work in his profession for eight years after his son received a diagnosis, forcing him to take lower- skilled jobs in cafes, supermarkets, and taxi apps. This occurred because while his son was medically unable to ﬂy, Qasim was also blocked from obtaining a permanent visa that would provide support for his family, leaving his professional skills unutilised by the Australian economy.⁴

Recommendations for Full Repeal and Alignment with the DDA

The Section 52 exemption facilitates systemic discrimination against disabled people and their families, perpetuating outdated, eugenicist policies. To rectify this, the DDA Review should endorse the following measures:

Recommendation 1: Full Repeal of the Migration Exemption (Section 52).

The DDA Review should pursue the full repeal of the provision in the Disability Discrimination Act 1992 (Section 52) that exempts migration decisions from the DDA. This is necessary to ensure that the discriminatory components of the Migration Health Requirement are subject to challenge under Australian anti-discrimination law.

Recommendation 2: Integrate DDA Principles into Migration Decision-Making and Prioritise Families.

Any assessment of “cost” or “burden” relating to disability within the migration system must align with modern DDA principles, prioritising the fundamental rights of disabled people and their families over economic convenience. This must eliminate the systemic discrimination inherent in the medical model approach by requiring consideration of the person’s actual circumstances and contributions, rather than dehumanising ﬁnancial calculations that position migrants exclusively as a burden.

Recommendation 3: Align Health Assessment with Clariﬁed DDA Standards.

If the DDA adopts a clariﬁed deﬁnition of unjustiﬁable hardship (e.g., ensuring the focus shifts to whether the detriment of providing the adjustment/support outweighs the

⁴ Watson, “‘You’re not welcome here’: Australia’s treatment of disabled migrants.”

PhD Student Submission

*benefit to the person), this revised standard should be immediately incorporated into the criteria used in the Migration Health Requirement. This reform is crucial to prevent the reliance on the ﬂawed “hypothetical person” test and mandate an individualised assessment of the migrant’s actual costs and societal contributions.

The systematic exclusion of families based on disability is contrary to the DDA’s objects. Legislative and policy changes must end the state-sanctioned discrimination against people with disability within the migration system, ensuring that the DDA’s protective scope truly extends to all individuals seeking a future in Australia.

Kind regards,

Ella Birt

PhD student, Australian Catholic University

References

Davis, Ashleigh. “Migration Act Prevents Uk Cop with Autistic Son from Joining Shrinking Wa Police Service.” ABC News, 16 September 2023.
———. “Migration Law’s Health Rules Labelled Discriminatory as Uk Police Officer Battles to Get Wa Work Visa.” ABC News, 10 July 2023.
Tay, Alice. Report of an Inquiry into a Complaint by Mr Mohammed Badraie on Behalf of His Son Shayan Regarding Acts or Practices of the Commonwealth of Australia (the Department of Immigration, Multicultural and Indigenous Affairs). Human Rights and Equal Opportunity Commission (2002).
Watson, Katy. “‘You’re Not Welcome Here’: Australia’s Treatment of Disabled Migrants.” BBC News, 9 July 2024 2024.
“Who Gets to Stay in Australia?”. Episode 3 SBS, 2020.