ABSTRACT
This article interrogates how the ‘health test’ under Australian immigration law adversely impacts upon the human rights of persons with disabilities who seek to migrate to Australia. The article argues that Australia’s longstanding health test for migrants may impose unjustifiable indirect discrimination on some migrants or refugees with disabilities, and thus infringe the equal protection obligation under the Convention of the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights. Health requirements under national migration law, as long as they are carefully crafted, are permissible in principle under international human rights law, to legitimately safeguard scarce medical resources in the community. The current Australian health test, however, is not sufficiently restricted in scope so as to comply with international human rights law. This article demonstrates that the health test is problematic because: (1) its threshold of application is set too low; (2) the quantification of disability costs is flawed; (3) the capacity of a person with disabilities to pay for treatment is not taken into account; (4) the social and economic contributions of a migrant with disabilities (and often his or her family) are not considered; (5) the evidentiary requirements are inadequate; (6) the operation of the test adversely affects the right of family unit; and (7) the test is not consistent with Australia’s International refugee law obligations. The operation of the health test results in the routine, arbitrary exclusion of migrants with disabilities from Australia, in a manner not justified by any legitimate public policy concerns. The health test also embodies an outmoded ‘medicalised’ policy approach to disabilities, in which persons with disabilities are perceived as an economic burden and object of charity, rather than having their inherent worth and human dignity valued and their contributions to social diversity recognised.
