FRAGOMEN
Teresa Liu
Managing Partner
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Fragomen (Australia) Pty Ltd.
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www.fragomen.com
14 November 2025
By upload to Disability Discrimination Act 1992 Review submission page
Submission: Disability Discrimination Act 1992 Review
Thank you for the opportunity to provide submissions to the Attorney-General’s Department.
We are pleased to provide this submission in response to the Disability Discrimination Act 1992 Review (DDA Review), with a focus on its interaction with the Migration Act 1958. Our submission draws on insights from our extensive client base, data compiled from visa program users, and the firm’s professional experience both in Australia and internationally. It reflects the perspectives of skilled migrants and their employers as well as Australian citizens and permanent residents seeking to reunite with their family members.
If we can further assist in the DDA Review consultation process, including in providing further data or insights, or participating in further stakeholder engagement such as focus groups or roundtable sessions, please do not hesitate to contact me on redacted: s47F - personal privacy or by email to redacted: s47F - personal privacy.
Yours sincerely
Teresa Liu
Managing Partner — Australia and New Zealand
Solicitor
Sensitivity: Confidential
1. ABOUT FRAGOMEN
Fragomen is one of the world’s leading global immigration law firms, providing comprehensive immigration solutions to our clients. Operating from over 60 offices in 33 countries (with capabilities in more than 170 countries), Fragomen provides services in the preparation and processing of applications for visas, work, and resident permits worldwide and delivers strategic advice to clients on immigration policy and compliance.
In Australia, Fragomen is the largest immigration law firm with over 150 professionals and support staff nationally, including Accredited Specialists in Immigration Law, legal practitioners, Migration Agents, and other immigration professionals. With offices in Brisbane, Melbourne, Perth, and Sydney, Fragomen assists clients with a broad range of Australian immigration services from corporate visa assistance, immigration legal advice, audit and compliance services and individual migration and citizenship applications.
Further information about Fragomen, both in Australia and globally, is available at: www.fragomen.com
2. SUMMARY OF POSITION
Fragomen submits that the exemption of the Migration Act 1958 (Cth) (the Act) from the Disability Discrimination Act 1992 (DDA) should be narrowed, if not removed altogether, in response to the Disability Discrimination Act 1992 Review (DDA Review) consultation question 33.^1
The exemption of the Act from the DDA was intended to preserve the government’s capacity to manage migration in the national interest:
“One of the reasons for this exemption is the operation of the Migration Health Requirement, which involves health screening of visa applicants to protect the Australian community from public health and safety risks, contain public expenditure on health care and community services, and safeguard the access of Australian citizens and permanent residents to healthcare and community services that are in short supply.” ^2 (emphasis added)
The exemption was also justified by government to prevent overburdening decision-making processes:
“The exemption in relation to migration has been inserted primarily because the Government does not wish to provide a further avenue for review of decisions made in this area where review already exists. The Government is prepared, however, to provide a commitment to reviewing the operation of these exemptions after the legislation has been in operation for two years. The legislation needs to be given a chance to work.” ^3 (emphasis added)
With the exemption now being in operation for more than 20 years, Fragomen submits that reform is needed to bring the Act in line with government and community expectations. Removal of the exemption will still allow the government to manage migration in the national interest, with enhanced ability to attract the best and brightest migrants to Australia.
^1 Disability Discrimination Act Review - issues paper, page 80
^2 Disability Discrimination Act Review - issues paper, page 77
^3 Disability Discrimination Bill 1992, Second Reading, Mr Gary Johns, Member for Petrie
3. REFORM IS IN AUSTRALIA’S INTERESTS
Fragomen submits that removal of the Act’s exemption from the DDA would be consistent with its commitments under international treaties.^4
Signatories to the Convention on the Rights of Persons with Disabilities (CRPD) undertake to modify or abolish law that constitute discrimination against persons with disabilities. The CRPD also calls for persons with disabilities to have the right to liberty of movement and freedom to choose their residence on an equal basis with others and recognises the rights of persons with disabilities to found a family.^5
The Convention on the Rights of the Child (CRC) requires States to ensure that children are not separated from parents against their will and recognises the right of children with disabilities to receive the special care and assistance necessary to ensure dignity, self-reliance and participation in the community. These rights apply to children without discrimination of any kind – including disability – and require in all actions concerning children, States maintain the best interests of the child as a primary consideration.^6
Australia also owes obligations under international treaties such as protection of the family unit,^7 the right to enjoyment of the highest attainable standard of physical and mental health,^8 and the right to gain a living by work which a person may freely choose or accept.^9
Previous Significant Cost Threshold Review
In April 2024, the Department of Home Affairs (the Department) published its Review into the Migration Health Requirement and Australia’s visa Significant Cost Threshold (SCT Review), following extensive stakeholder consultation. The SCT Review outlined 9 findings which broadly demonstrate there is support from the Australian community – including families, health organisations and businesses – to reform the migration health requirements and associated framework.
For example, Findings 1, 5 and 6 identified a need for greater transparency on the calculation of the significant costs threshold, and acknowledged the unfair application of the threshold to applicants with stable and managed chronic conditions.^10
Finding 7 noted strong support by disability organisations, members of the public and migration practitioners for special consideration to be extended to children born and living in Australia.^11 Given the strong support, and in recognition of their inherent connection to Australia, reforms were made to the Regulations to exempt this cohort from the “significant cost” and “prejudice to access” assessments.^12
^4 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 291 – 292
^5 Convention on the Rights of Persons with Disabilities, Articles 4(1)(b), 18, 23
^6 Convention on the Rights of the Child, Articles 9, 23, 2, 3
^7 International Covenant on Civil and Political Rights, Articles 17, 23(1)
^8 International Covenant on Economic, Social and Cultural Rights, Article 12
^9 International Covenant on Economic, Social and Cultural Rights, Article 6
^10 Review into the Migration Health Requirement and Australia’s visa Significant Cost Threshold, Department of Home Affairs, pages 11, 15, 16.
^11 Review into the Migration Health Requirement and Australia’s visa Significant Cost Threshold, Department of Home Affairs, page 17
^12 Migration Amendment (Public Interest Criteria 4005 and 4007) Regulations 2024
Whilst this amendment has been welcome, we submit that further reform is necessary to bring the migration settings in line with current community expectations. Removal of the exemption of the Act from the DDA would support a broader review and reform of the migration health framework in line with the current government’s migration strategy.^13
Potential contribution of persons with a disability
Fragomen supports the implementation of Finding 4 of the SCT Review, calling for the removal of special education costings from the significant costs assessment.^14 This reform supports the right of all children to an education and recognises the potential of each child to contribute economically, socially and culturally as they mature according to their strengths.
The SCT Review states that in 2022-23, only 263 child visa applicants were found not to meet the health requirement on the basis of special education costings,^15 which is a small number relative to the total migration intake of 195,000 for the same period.^16
Supporting people with disability to participate fully in the workforce not only helps to alleviate Australia’s skills shortages,^17 but also delivers broader social benefits such as increased economic productivity, greater innovation through diverse perspectives, enhanced community inclusion, and reduced long-term reliance on social supports.
4. ENSURING BEST PRACTICE THROUGH AMENDMENT OF THE DDA
The current exemption of the Act from the DDA also impacts on the operation of non-health criteria, which would not appear to be within the main purpose of the exemption being containment of public expenditure and safeguarding access to healthcare and community services that are in short supply.
Some examples of these provisions, that do not directly relate to health criteria, include:
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Functional English — Certain applicants must sit an English test or pay a mandatory charge (currently $4,890) and there is no provision for an exemption to be made for people with a disability.^18 The mandatory charge entitles the applicant to free English lessons,^19 and is requested only after all other visa criteria are met. This means that an applicant with a learning disability who is not able to make use of the free English lessons must still pay the mandatory charge, even after they have been given a health waiver by the Department.
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Sponsors — Where Australians have a disability that impacts their ability to work, they may not be able to meet income^20 or Assurance of Support requirements^21 to sponsor their spouse, child or parent to migrate to Australia. In many instances there are no provisions
^13 https://immi.homeaffairs.gov.au/what-we-do/migration-strategy
^14 Review into the Migration Health Requirement and Australia’s visa Significant Cost Threshold, Department of Home Affairs, page 14
^15 Review into the Migration Health Requirement and Australia’s visa Significant Cost Threshold, Department of Home Affairs, page 14
^16 2022-23 Migration Program FAQ, Department of Home Affairs
^17 2025 OSL Additional Insights Report, Jobs and Skills Australia, pages 16 - 20
^18 Migration Regulations 1994 (Cth), Schedule 1 Classes of visa, for example, see: Item 1114B(2)(b)
^19 Adult Migrant English Program, Department of Home Affairs
^20 Migration Regulations 1994 (Cth), for example, see: Regulation 2.60W
^21 Services Australia, Assurance of Support > Who can be one
in the Act or Regulations that allow for the circumstances of each family to be considered, for example, if the Australian sponsor has accommodation or significant assets, or if an overseas spouse is highly skilled and can support themselves as well as the Australian sponsor.
- Carer visa processing times — Due to the Department’s planning levels, processing times for Carer visas are projected to be approximately 12 years,^22 thus denying Australians who have been assessed as requiring care, and with no reasonable access to care options, to receive care from an able and willing relative.
Whilst we acknowledge that reform of the Act is not in the remit of this DDA Review, we submit that removal of the Act from the DDA is a necessary first step towards initiating further essential migration related reform in these areas.
As a comparison, the Australian Citizenship Act 2007 (Cth) (Citizenship Act) is not exempt from the DDA, meaning that the Department cannot make legislation or decisions in breach of Australia’s disability discrimination law.
For example, the Citizenship Act exempts applicants from testing and English language requirements “if they have a permanent or enduring physical or mental incapacity”.^23 This exemption applies to all applicants by conferral regardless of how they obtained their permanent residency. Additionally, the exemption applies to applicants who have not previously had to pass migration health requirements, such as New Zealand citizens. The Department also makes adjustments for applicants with a disability or impairment such as providing accessible testing environments.^24
5. CURRENT MIGRATION HEALTH FRAMEWORK DOES NOT JUSTIFY DDA EXEMPTION
We acknowledge that the purpose of the DDA exemption is to contain public expenditure on health care and to safeguard access to services in short supply. We respectfully submit that further analysis is required as to the more specific impact of this purpose, and weighed against the economic and social contributions made by affected migrants and, as relevant, their Australian family.
Reform of the migration health requirement
While the Act and Regulations have, over the years, introduced a number of mechanisms to manage the migration health requirement, Fragomen submits that some revisions would ensure outcomes that are both equitable and consistent with the DDA’s intent, while still achieving the government’s stated objections of containing public and safeguarding the access of Australian citizens and permanent residents to healthcare and community services that are in short supply.
- Revise the “hypothetical person”, “significant cost” and “prejudice to access” tests: The current health criteria only consider the illness or condition and ignores an applicant’s particular circumstances, including their ability to mitigate costs or intention to receive treatment overseas, unless there is a health waiver available. Additionally, the process unfairly assesses those with stable and managed conditions based on assumptions, rather than the specific facts of an individual case. A “net benefit” test that
^22 Department of Home Affairs, Other Family visas - queue release dates and processing times
^23 Australian Citizenship Act 2007 (Cth), section 23
^24 Department of Home Affairs, Citizenship test and interview > Learn about the citizenship test
evaluates the prospective contributions of applicants and their family members would reframe the health requirement in positive terms, recognising people with disability as contributors rather than a burden on the community.
Case study — Crohn’s disease
redacted: s47F - personal privacyhas Crohn’s disease, a condition that requires prescription medication. She has been living and working in Australia for two years on the subclass 482 visa as an Engineering Manager. Her condition is stable and managed with medication and some lifestyle factors such as a controlled diet.redacted: s47F - personal privacytravels back to her home country each year to visit relatives, attend meetings at their Australian employer’s parent company office, see her specialist doctor, and fill up on her prescription.
redacted: s47F - personal privacyis marrying an Australian citizen and wishes to apply for permanent residency. Under the “hypothetical person” assessment, the cost ofredacted: s47F - personal privacymedication in Australia would be mandatorily included when assessing the health requirement. The fact thatredacted: s47F - personal privacybrings her medication from overseas, works full-time, earns a considerable salary and has an Australian spouse cannot be considered in whether she meets the threshold health requirement.
redacted: s47F - personal privacyfails the health requirement as her medication costs are estimated to be $122,413 over ten years, which is above the significant costs threshold.redacted: s47F - personal privacyis forced to go through the health waiver process. Whileredacted: s47F - personal privacypermanent residency is ultimately granted, the additional paperwork, cost and time required has caused considerable stress and uncertainty forredacted: s47F - personal privacyher Australian citizen spouse and her employer.
- Exempt family members of Australian citizens from certain health requirements: Following amendments to the Regulations in October 2024, children born in Australia to temporary residents and who are usually resident in Australia are taken to have an inherent tie to Australia. Accordingly, they are exempt from the “significant cost” and “prejudice to access” assessments.^25 As outlined earlier, we submit that family members of Australians should be recognised as having the same inherent tie and therefore similarly exempted.
Case study — three babies
Babies
redacted: s47F - personal privacywere all born on 1 November 2025.
redacted: s47F - personal privacywas born in Australia to 482 visa holders who have been in Australia for 6 months, and are shortly lodging a permanent residency application. As part of the application,redacted: s47F - personal privacywill not need to meet “significant cost” and “prejudice to access” requirements.
redacted: s47F - personal privacywas born in Australia to Australian permanent residents.redacted: s47F - personal privacyparents have not lived in Australia for 15 years and only recently returned for 6 months so thatredacted: s47F - personal privacycould be born onshore and be automatically granted Australian citizenship.redacted: s47F - personal privacyparents plan to depart Australia onceredacted: s47F - personal privacyAustralian passport is issued.redacted: s47F - personal privacycan apply for Australian citizenship by descent and does not need to undergo any health assessments.
redacted: s47F - personal privacywas born outside Australia to Australian permanent residents.redacted: s47F - personal privacyparents lived in Australia for 15 years and only recently moved overseas for a 6-month assignment.redacted: s47F - personal privacywill need to apply for a Child visa to return to Australia with their parents, and will need to complete health checks and meet the “significant cost” and “prejudice to access” requirements.In this case study,
redacted: s47F - personal privacyinherent tie to Australia is the strongest, but they are the only baby required to meet the health requirements.
^25 Migration Amendment (Public Interest Criteria 4005 and 4007) Regulations 2024
- Apply the health criterion consistently across all visa programs: The current health waiver framework operates inconsistently across visa subclasses and should be applied equally to humanitarian, family reunion and skilled migrants. The case study below shows the impact of applying health criteria inconsistently to applicants.
Case study — Subclass 186, 189, 190 visas
redacted: s47F - personal privacyare both Cardiologists from the United Kingdom and have identical qualifications and employment experience. However,redacted: s47F - personal privacyhas a child with autism. Whileredacted: s47F - personal privacyhas immediate permanent residency options through the 186 visa (Direct Entry stream), the 189 visa or the 190 visa,redacted: s47F - personal privacycannot access pathways as they do not carry a health waiver. This is despite receiving several job offers from desperate hospitals in Australia.
redacted: s47F - personal privacymust first obtain a temporary visa, live and work in Australia for two years, and then apply for permanent residence through the Temporary Residence Transition stream of the 186 visa.
redacted: s47F - personal privacyso, after “failing” the health requirement, will then be required to obtain a health waiver. Faced with this complexity and delay,redacted: s47F - personal privacychooses to migrate to a country with more flexible and transparent health criteria.redacted: s47F - personal privacy, sympathising withredacted: s47F - personal privacydiscriminatory treatment, changes their mind about migrating and remains in the UK.
6. CLOSING REMARKS
The exemption of the Migration Act 1958 from the Disability Discrimination Act 1992 undermines procedural fairness and transparency in visa decision-making, leaving applicants with a disability and their families without the same legal protections and access to justice afforded to others. As demonstrated in its administration of other legislation, Australia can still uphold its sovereign control over migration and borders while removing discriminatory criteria to ensure a fair and inclusive framework.
Current discriminatory provisions in the Act and Regulations result in Australian visa refusals based on hypothetical costs and predicted needs rather than a balanced assessment of an individual migrant’s potential economic, social, and cultural contributions. Removing this exemption will support reform and modernisation of the migration health framework and reduce systemic discrimination in Australia. It will also help to strengthen our compliance with international obligations, and align migration law with contemporary human rights standards.
A fair and inclusive migration framework reflects the Australian community’s expectation that people with disability are valued contributors, not burdens. Beyond their economic impact, migrants enrich Australia through social, cultural, and humanitarian contributions that foster inclusion, innovation, and national resilience.
Reforming the DDA to narrow or remove the current exemption in application to the Act, will support positive change and reform from a migration perspective that better encapsulates Australia’s core values of fairness, compassion, and opportunity for all.