Migrating to Australia with Disabilities: Non-Discrimination and the Convention on the Rights of Persons with Disabilities

Australian Journal of Human Rights, Vol. 16, No. 1, pp. 63-104, 2010

Sydney Law School Research Paper No. 10/109

26 Pages Posted: 2 Nov 2010

See all articles by Ben Saul

Ben Saul

The University of Sydney Law School

Date Written: November 1, 2010

Abstract

This article argues that Australia’s ‘health test’ for aspiring migrants imposes unjustifiable indirect discrimination on migrants or refugees with disabilities, violating Australia’s equal protection obligations under the Convention on the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights. Carefully crafted health requirements under national migration law which are designed to legitimately safeguard a country’s scarce medical resources are permissible under international human rights law. The current Australian health test, however, is too broad. This article demonstrates that the health test is problematic because: (1) its threshold of application is too low; (2) the quantification of disability costs is flawed; (3) the capacity of a person with disabilities to pay for treatment is not considered; (4) the social and economic contributions of a migrant with disabilities (and often their family) are not considered; (5) the evidentiary requirements are inadequate; (6) the test impairs the right to family unity; and (7) the test is inconsistent with Australia’s international refugee law obligations. The health test arbitrarily excludes migrants with disabilities without a legitimate public policy justification. It also embodies an outmoded ‘medicalised’ policy approach to disabilities which considers persons with disabilities economic burdens and objects of charity, rather than honouring their inherent worth, human dignity and contribution to social diversity.

Keywords: disability, discrimination, Convention on the Rights of Persons with Disabilities, Migration, Australia

JEL Classification: K10, K30, K33

Suggested Citation

Saul, Ben, Migrating to Australia with Disabilities: Non-Discrimination and the Convention on the Rights of Persons with Disabilities (November 1, 2010). Australian Journal of Human Rights, Vol. 16, No. 1, pp. 63-104, 2010; Sydney Law School Research Paper No. 10/109. Available at SSRN: https://ssrn.com/abstract=1700922

Ben Saul (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://https://sydney.edu.au/law/about/people/profiles/ben.saul.php

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